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. 23591 of 2009(O) -------------------------- OS.444/1953 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): --------------- 1. SALEEMA, AGED 54 YEARS, D/O. LATE MEERA SAHIB, RESIDING AT KUNNIL VEDU, PALLICHAVEETTU MURI, PALLIPPURAM VILLAGE, NOW RESIDING AT NIZAR BUILDING VARIKKUMUKKU, MURIKKUMPUZHA.P.O., THIRUVANANTHAPURAM. 2. RAFFEEKA, AGED 51 YEARS, E/O. LATE MEERA SAHIB RESIDING AT KUNNIL VEEDU, PALLICHAVEETTU MURI, PALLIPPURAM VILLAGE, NOW RESIDING AT NIZAR BUILDING, VARIKKUMUKKU, MURIKKUMPUZHA.P.O., TRIVANDRUM. 3. NIZARUDHEEN, AGED 49 YEARS, S/O. LATE MEERA SAHIB, RESIDING AT KUNNIL VEEDU PLLICHAVEETTU MURI, PALLIPPURAM VILLAGE, NOW RESIDING AT NIZAR BUILDING VARIKKUMUKKU, MURIKKUMPUZHZA P.O. TRIVANDRUM. 4. NAZEERA, AGED 46 YEARS, D/O. LATE MEERA SAHIB, RESIDING AT KUNNIL VEEDU, PALLICHAVEETTU MURI PALLIPPURAM VILLAGE, NOW RESIDING AT NIZAR BUILDING,L VARIKKUMUKKU MURIKKUMPUZHZA.P.O. TRIVANDRUM. 5. SHAJEERA, AGED 41 YEARS, D/O. LATE MEERA SAHIB, RESIDING AT KUNNIL VEEDU, PALLICHAVEETTU MURI, PALLIPPURAM VILLAGE, NOW RESIDING AT NIZAR BUILDING VARIKKUMUKKU, MURIKKUMPUZHZA.P.O., TRIVANDRUM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) WPC 23591/09 RESPONDENT(S): --------------- 1. GOMIZ AGED ABOUT 54 YEARS RESIDING AT DAYO COTTAGE, NEAR FIRE STATION KADAPPAKADA, KOLLAM. 2. JIN AGED ABOUT 49 YEARS, RESIDING AT DAYO COTTAGE, NEAR FIRE STATION, KADAPPAKADA, KOLLAM. 3. NINA, AGED ABOUT 46 YEARS, RESIDING AT DAYO COTTATE, NEAR FIRE STATION, KADAPPAKADA, KOLLAM. 4. GLAL, @ GOERGE, AGED 44 YEARS, RESIDING AT DAYO COTTAGE, NEAR FIRE STATION KADAPPAKADA, KOLLAM. 5. ANN, AGED ABOUT 41 YEARS, RESIING AT DAYO COTTAGE, NEAR FIRE STATION, KADAPPAKADA, KOLLAM. 6. NIYAS, AGED 26 YEARS, S/O. LATE MEERA SAHIB, RESIDING AT KUNNIL VEEDU PALLICHAVEETTU MURI PALLIPPURAM VILLAGE, NOW RESIDING AT NIZAR BUILDING VARIKKUMUKKU, MURIKKUMPUZHZA.P.O. TRIVANDRUM. ADV. SRI.L.MOHANAN FOR R1 TO 3,5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 23591/09) PETITIONERS' EXTS.: EXT.P1: TRUE COPY OF THE MORTGAGE DEED NO.2667/1107 DATED 5TH MITHUNAM 1107. EXT.P2: TRUE COPY OF THE PRELIMINARY JUDGMENT DATED 31.5.58 IN O.S.NO.444/53 ON THE FILE OF THE MUNSIFF'S COURT, ATTINGAL. EXT.P3: TRUE COPY OF THE EA NO.122/05 IN EP NO.53/1978 IN O.S.NO.444/53 OF THE MUNSIFF'S COURT, ATTINGAL. EXT.P4: TRUE COPY OF THE OBJECTION IN EA NO.122/05 IN EP NO.53/78 IN O.S.NO.444/53 OF THE MUNSIFF'S COURT, ATTINGAL. EXT.P5: TRUE COPY OF THE ORDER DATED 10.8.07 IN E.A.NO.122/05 IN E.P.NO.53/78 IN O.S.NO.444/53 OF THE MUNSIFF'S COURT, ATTINGAL.. EXT.P6: TRUE COPY OF THE APPEAL MEMORANDUM IN A.S.NO.61/07 ON THE FILE OF THE SUBORDINATE JUDGES COURT, ATTINGAL. RESPONDENTS EXTS.: (RESPONDENTS 1 TO 3 & 5): EXT.R1(a): COPY OF THE JUDGMENT IN A.S.NO.61/07 ON THE FILE OF THE SUB COURT, ATTINGAL. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.23591 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 28th October, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following relief: “To issue a writ of certiorari or any other appropriate order or direction quashing P5 holding that Ext.P5 is grossly illegal and wrong and the executing court has gone beyond the authority vested with it and direct the executing court to reconsider the issue regarding benefit under 4A (1)(b) of the Land Reforms Act to the petitioners afresh.” 2. Petitioners are the judgment debtors in E.P.No.53 of 1978 in O.S.No.444 of 1953 on the file of the Munsiff Court, Attingal. Suit is for redemption. Petitioners are some of the judgment debtors, and the respondents 1 to 5 are the decree holders and the 6th respondent is a cojudgment debtor. In the execution, the judgment debtors filed a petition seeking reference to the Land Tribunal contending that they have got fixity of tenure over the decree scheduled property and their right to tenancy has to be determined by that Tribunal. The learned Munsiff, after hearing both sides, dismissed that application vide P5 order. Propriety and correctness of P5 order is challenged in W.P.C.No.23591/09 - 2 - the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. At the time of hearing, it is brought to my notice that the present petitioners have challenged the very same P5 order by way of an appeal before the Sub Court, Attingal and the appeal was dismissed by judgment dated 11.8.2009 on merits. The claim of fixity of tenure canvassed by the petitioners negatived by the execution court, was examined by the appellate court and found to be unacceptable. It was also held that the appeal was not maintainable. R1(a) is the copy of the judgment rendered in the appeal. It is submitted that of R1(a) judgment has not been challenged by the petitioners and it has become final and conclusive. It was not a case of appeal being rejected as not maintainable. When that be the case, the dismissal of the appeal holding that it was not maintainable in no way would enure to the benefit of the petitioners to challenge P5 order afresh by filing a writ petition before this court. On that solitary ground itself, the challenge against P5 order invoking the visitorial jurisdiction of this court under Article 227 of the Constitution cannot be entertained. Noticing the insurmountable difficulty in challenging the correctness of P5 by a writ petition as learned counsel for the W.P.C.No.23591/09 - 3 - petitioners sought for a grace period to vacate from plaint schedule property. Learned counsel for the decree holders pointed out that the suit instituted in 1953 still continues unabated from one forum to another even after deposit of the mortgage amount on 2.9.1958, severing the mortgagor mortgagee relationship. Under the above circumstances, no further time need be extended for vacating and surrendering the property is the submission of the learned counsel for the decree holders. Having regard to the totality of the facts and circumstances and also considering the submissions made by the counsel on both sides, I find a grace period can be extended to the judgment debtors to surrender vacant possession of the plaint property subject to their undertaking before the execution court that they shall unconditionally vacate and surrender the plaint property within a period of three months from the date of this judgment. In case, the petitioners/judgment debtors file an undertaking as indicated above before the execution court within a period of 14 days from the date of this judgment, the court below shall keep in abeyance the delivery proceedings for a period of three months from this date. In default of the petitioners to surrender vacant possession, the court below shall proceed forthwith for delivering the property to W.P.C.No.23591/09 - 4 - the decree holders. If undertaking is given and default committed after the expiry of three months, then also the court below shall take appropriate steps for delivering the property to the decree holders, if necessary with police aid. It is conceded by the counsel for the decree holders that the judgment debtors entitled to remove the buildings and structures in the plaint property as it is so provided in the mortgage deed. Subject to the above directions, the writ petition is closed. srd S.S. SATHEESACHANDRAN, JUDGE