IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 OP(C).No. 2266 of 2011(O) -------------------------------- OS.118/2007 of MUNISIFF COURT,THODUPUZHA .................... PETITIONERS: ----------------- 1. THANKACHEN, S/O.PATHROSE AGED 49 YEARS PAZHAYAVATTAPALLIL HOUSE, KARIMANOOR PO, 2. VALSAMMA,W/O.THANKACHAN ,AGED 49 YEARS PAZHAYAVATTAPALLIL HOUSE, KARIMANOOR PO DO..VILLAGE. PETITIONERS 1 &2 REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER JOSEPH KURIAKOSE, MUNDACKAL HOUSE, EZHUMUTTOM PO, KARIMANOOR. BY ADV. SRI.T.J.MICHAEL RESPONDENT(S):PLAINTIFF/DEFENDANT 1 & 2. --------------------------------------------------------- 1. LUCKA AGED 66 YEARS, S/O.VARGHESE,KUNNAPALLIL HOUSE, KARIMANOOR PO, THODUPUZHA 685 581. 2. SABU PAUL, AGED 41 YEARS,S/O.PAULOSE, MADAKATHANATH HOUSE, PERUMPILLICHIRA PO, KUMARAMANGALAM VILLAGE THODUPUZHA 685 605. 3. SAVITHRI ANTHARGANAM AGED ABOUT 70 YEARS S/O.PARAMESHWARAN NAMBOOTHIRI,INCHAPALLI HOUSE SHAPPUMPADI, VENGALOOR PO,THODUPUZHA 685 584. 4. JOSEPH SEBASTIAN, AGED 61 YEARS EDETTU HOUSE, KODIKULAM PO, THODUPUZHA 685 582. 5. MURUGHAN S/O.KUNJAPPAN AGED 51 YEARS THAKADAMKULAM HOUSE AVOLY, RANDAR KARA MOOVATTUPUZHA PO, 686 661. 6. JOSEPH,S/O.DEVASIA AGED ABOUT 45 YEARS EDASSERIL HOUSE, KODIKULAM PO,THODUPUZHA 685 582. R1 BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2266/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO.118/2007 OF MUNSIFF COURT THODUPUZHA DATED 10/04/2007. P2: COPY OF WRITTEN STATEMENT IN O.S NO.118/2007 DATED 05/06/07 P3: COPY OF JUDGMENT IN O.S. NO.118/2007 DATED 13/08/2008. P4: COPY OF DECREE IN O.S. NO.118/2007 DATED 13/08/2008. P5: COPY OF COMMISSION REPORT AND ROUGH SKETCH IN O.S. NO.118/2007 IN APRIL 2007. P6: COPY OF PETITION FOR SETTING ASIDE EXPARTE DECREE IN O.S. NO.118/2007 (IA. NO.798/2011) DATED 30/05/2011. P7: COPY OF PETIITON FOR IMPLEADING (IA. NO.806/2011) IN O.S. NO.118/2007 DATED 30/05/2011. P8: COPY OF PETITION TO CONDONE DELAY (IA. NO.805/2011) DATED 30/05/2011. P9: PETITION FOR STAY OF PROCEEDINGS IN EP NO.8/2010 DATED 11/07/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.2266 of 2011 --------------------------------------- Dated this 09th day of November, 2011 JUDGMENT Respondents 4 to 6 are deleted from the array of parties since they are not necessary parties to this proceeding, nor are parties in the suit. 2. First respondent filed O.S.No.118 of 2007 against respondents 2 and 3 for recovery of possession of the suit property on the strength of title. Respondents 2 and 3 filed written statement denying title and possession claimed by the first respondent. While so, they transferred the property to one Joseph Sebastian who in turn assigned the same to Murughan and Joseph. From the said Murukan and Joseph, petitioners claim to have purchased the property. Petitioners say that when they attempted to construct a compound wall on their eastern boundary, first respondent initiated execution proceeding in E.P.No.8 of 2010 in O.S.No.118 of 2007 claiming that petitioners have trespassed into a portion of the suit property. According to the petitioners, they learned about pendency of the suit and the decree only then. It is their O.P(C).No.2266 of 2011 -: 2 :- further contention that property they acquired as above stated does not form part of the suit property in O.S.No.118 of 2007 though, first respondent would contend that the said property is part of the suit property. Petitioners filed I.A.No.798, 805 and 806 of 2011 to set aside the ex parte decree, implead them as additional defendants and to condone the delay. They also filed I.A.No.1058 of 2011 to stay execution of the decree but, all those applications were posted along with E.P.No.8 of 2010 (as the learned counsel for petitioners contends). Hence it is prayed that learned Munsiff may be directed to dispose of the said applications and in the meantime keep the execution proceeding in abeyance. 3. Learned counsel for the first respondent has contended that petitioners are pendente lite purchasers of a portion of the suit property and hence the decree is executable as against them also. 4. I need not go into the question whether the decree is executable against petitioners in this proceeding. I.A.Nos.798, 805 and 806 of 2011 filed to set aside the ex parte decree, impleadment of petitioners as additional O.P(C).No.2266 of 2011 -: 3 :- defendants and to condone the delay as also I.A.No.1058 of 2011 for stay of execution are pending decision of the learned Munsiff. It is appropriate that having regard to the rival contentions that execution proceedings are kept in abeyance until the said applications are disposed of. Resultantly this original petition is disposed of as follows: (i) Learned Munsiff, Thodupuzha is directed to dispose of I.A.Nos.798, 805, 806 and 1058 of 2011 in O.S.No.118 of 2007 as early as possible if steps on the said applications are over. (ii) It is directed that execution of the decree in O.S.No.118 of 2007 to the extent it related to the property over which petitioners claim title and possession as per assignment deed No. 698 of 2009 of S.R.O, Karikode will stand in abeyance until disposal of the applications above stated. (iii) Learned Munsiff shall, having regard to the facts and circumstances expedite the disposal of applications above stated. (THOMAS P. JOSEPH, JUDGE) Sbna/-