IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 15906 of 2009(O) -------------------------- AGAINST THE ORDER DATED 26/02/2009 IN EA 643/08 IN EP 66/01 IN OS.54/1992 of M.C.,VADAKKANCHERRY .................... PETITIONER: --------------- KAMALAM AMMA, D/O.NADUVIL NETTIYATH LATE LAKSHMI AMMA, KANJIRASSERY DESOM, MULLOORKKARA VILLAGE P.O., THRISSUR DISTRICT. BY ADV. MR.SHOBY K.FRANCIS RESPONDENTS: --------------- 1. LAKSHMIKUTTY AMMA, D/O.TALAPPILLY VEETIL PARUKUTTIYAMMA, MULLOORKKARA VILLAGE DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. VINOD, S/O.LAKSHMIKUTTY AMMA, TALAPPILLY HOUSE, MULLOORKKARA VILLAGE, P.O.MULLOORKKARA, TALAPPILLY TALUK, THRISSUR DISTRICT. 3. SEEMA @ SEEMANDHINI, D/O.LAKSHMIKUTTY AMMA, TALAPPILLY HOUSE, MULLOORKKARA VILLAGE, MULLOORKKARA.P.O. TALAPPILLY TALUK, THRISSUR DISTRICT. 4. MADHAVIYAMMA (DIED), D/O.NADUVIL NEETIYATH PARU @ AMMUKUTTIYAMMA, KANJIRASSERY DESOM, MULLOORKKARA VILLAGE, MULLOORKKARA.P.O. THRISSUR DISTRICT. 5. PARUKUTTIYAMMA, D/O.NADUVIL NEETIYATH LAKSHMIYAMMA, KANJIRASSERY DESOM, MULLOORKKARA VILLAGE, MULLOORKKARA.P.O. THRISSUR DISTRICT. 6. ANANDAN, S/O.TALAPPILLY LAKSHMIKUTTYAMMA, TALAPPILLY HOUSE, MULLOORKKARA VILLAGE, MULLOORKKARA.P.O. TALAPPILLY TALUK, THRISSUR DISTRICT. ADV. MR.G.SREEKUMAR (CHELUR) FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.15906 of 2009 - O --------------------------------- Dated this the 28th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari under Article 227 of the Constitution of India and set aside Ext.P2 commission report in E.A.No.522/2007 in E.P.No.66/2001 in O.S.No.54/92, Ext.P4 order dated 18.9.2008 in E.P.No.66/2001 in O.S.No.54/92 and P7 order dated 26.2.2009 in E.A.No.643/2008 in E.P.No.66/2001 on the file of the Munsiff Court, Wadakkancherry. ii) To declare that the respondents 1 to 5 are not entitled to mesne profit from the date of suit till the date of expiration of three years from the date of decree.” 2. Petitioner is the judgment debtor in E.P.No.66 of 2001 in O.S.No.54 of 92 on the file of the Munsiff Court, Wadakkancherry. Suit was one for recovery of possession with mesne profits. A decree was granted for recovery of possession relegating determination of mesne profits in execution. The decree passed by the trial court was confirmed in first and second appeals. Pursuant thereto respondents 1 to 3/decree holders got W.P.(C).No.15906 of 2009 - O 2 delivery of the property through execution. The decree holders also applied for ascertainment of the mesne profits to be paid by the judgment debtors. An advocate commissioner was deputed by the court below to ascertain the quantum of mesne profits. On the basis of the materials produced after due enquiry the court below passed Ext.P4 order in which the decree holders allowed mesne profits as quantified in C1 report prepared by the commissioner. It was further ordered the period for which the mesne profits has to be paid will be as under Order XX Rule 12(c) of the Code of Civil Procedure. Pursuant to passing of Ext.P4 order the decree holders moved an application for reviewing the period for which they are entitled to claim mesne profits. After hearing both sides the court below passed Ext.P7 order clarifying that the judgment debtors have to pay mesne profits from the date of suit for the period specified under Order XX Rule 12(c) of the Code of Civil Procedure. Propriety and correctness of Ext.P7 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. W.P.(C).No.15906 of 2009 - O 3 4. After hearing the counsel on both sides as I felt that the chances of settlement have to be examined, parties were referred to the Mediation Centre. Efforts of mediation failed, but, later, parties after due deliberation have reached a settlement by which towards full and final settlement of the disputes petitioner/judgment debtor has agreed to pay a sum of Rs.50,000/- towards the claim of mesne profits and the decree holders have agreed to accept the same as full satisfaction of the decree debt due. It is reported by the counsel on both sides that the petitioner/judgment debtor has paid Rs.50,000/- to the counsel for the decree holders, and a receipt thereof has also been issued. Since parties have come to settlement as indicated above nothing survives for consideration in the writ petition. Learned counsel for the petitioner/judgment debtor submits that a direction/ order be issued to the execution court to lift the attachment ordered over his property to secure the amount covered by the mesne profits. It is open to the petitioner/judgment debtor to seek for appropriate directions/orders from the execution court in view of the settlement arrived between the parties. Court below is directed W.P.(C).No.15906 of 2009 - O 4 to take note of the settlement arrived by the parties and dispose the execution proceedings recording the satisfaction and passing appropriate orders vacating the attachment ordered, over the property of the judgment debtor, to secure the debt due towards mesne profits. Writ petition disposed as indicated above. Hand over a copy of the judgment to the counsel on both sides on usual terms and send a copy to the court concerned forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-