IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 CRP.No. 36 of 2011() ------------------------- AGAINST THE ORDER DATED 02/11/2010 IN EA.911/10 EP.414/08 IN OS.118/1979 of II ADDL. MUNSIFF COURT, NEYYATTINKARA. .................... PETITIONER/IST DECREE HOLDER/2ND DEFENDANT -------------------------------------------------------------- JOSEPH NADAR RAJAYYAN, S/O.JOSEPH, KALAMGARUVIL PUTHENVEEDU, MARATHOOR DESOM, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.BINDU SREEKUMAR RESPONDENT(S):/JUDGEMENT DEBTOR/8TH DEFENDANT ------------------------------------------------------------------- AVEL ENOSE, KARTHIKAPPALLY VEEDU, MARATHOOR DESOM, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT - 695 001. BY ADV. SRI.G.S.REGHUNATH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.36 of 2011 -------------------------------------- Dated this the 12th day of July, 2011. ORDER Petitioner is the second defendant in O.S.No.118 of 1979 of the court of learned II Additional Munsiff, Neyyattinkara. That is a suit for partition of mortgage right in the property. There was a preliminary decree allotting half share each to the petitioner and plaintiff. Later respondent purchased half share of the plaintiff. Thereafter final decree was passed based on Exts.C1 and C1(a), report and plan. As per the final decree a sum of `1,11,395/- was due as owelty from the respondent and payable to the plaintiff. It is submitted by learned counsel for petitioner that since the respondent did not pay the said amount, petitioner in accordance with the direction in the final decree paid the said amount to the plaintiff and got possession of half share allotted to the respondent as per the final decree. It is submitted by learned counsel that later, petitioner filed E.P.No.414 of 2008 for delivery of the half share of respondent and as per order on that execution petition, delivery was effected and the execution petition was closed. Grievance of petitioner is that after delivery was effected and execution petition was closed, respondent trespassed into the suit property. petitioner filed E.A.No.911 of 2010 to re-open E.P.No. 414 of 2008 (it was closed recording full satisfaction). Since executing court did not consider that application petitioner approached this Court with O.P.(C) No.31 of 2010 and obtained a direction to the executing court to consider that application. CRP No.36/2011 2 Executing court dismissed E.A.No.911 of 2010 holding that execution petition was closed after recording full satisfaction and hence it cannot be re-opened based on the allegation of subsequent trespass. The said order is under challenge. Learned counsel for petitioner contended that even if execution petition was closed recording full satisfaction, if subsequent to the closing of the execution petition respondent trespassed into the decree schedule property it is open to the petitioner to get the execution petition re-opened and it is within the power of the executing court to grant relief as prayed for in E.A.No.911 of 2010. Learned counsel for respondent in response contended that if that argument is accepted there would be no end for the execution proceeding in that every time petitioner complaints of trespass, the execution petition has to be re-opened. 2. Equally bad would be the plight of petitioner in case execution petition is not re-opened. If after delivery is effected and the execution petition is closed, there is a trespass the next day, petitioner has to go for another suit. If that suit is decreed and in execution delivery is effected and execution petition is closed, again there could be a trespass and petitioner should go for another suit. Such a situation, the law does not contemplate. Nor is the executing court powerless to re-open the execution petition which is already closed and grant relief to the petitioner/decree holder. This Court has in a similar situation taken that view in Dasan Nadar Surendran v. Parameswaran Pillai (2007 (4) KLT 563). In the above view of the matter, the order of executing court cannot be sustained. 3. But, I make it clear that I have not gone into the question of any CRP No.36/2011 3 trespass pleaded by petitioner. That is a matter which the executing court has to look into, and if it is found true, it is within the power of the executing court to grant relief as prayed for. Resultantly this civil revision is allowed. The impugned order is set aside and E.A.No.911 of 2010 is allowed. Consequently E.P.No.414 of 2008 in O.S.No.118 of 1979 will stand re-opened. The executing court shall enquire into the question whether allegation of trespass made by petitioner is true and if it is found true, grant relief as provided under law. I.A.No.179 of 2011 will stand closed. THOMAS P.JOSEPH, Judge. cks