IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 OP(C).No. 1218 of 2010(O) ------------------------- AGAINST THE ORDER IN EP 235/2009 IN OS.199/1997 OF MUNSIFF COURT, HOSDURG .................... PETITIONER --------------------: BAYAKODAN VEETTIL MADHAVI, AGED 64 YEARS D/O.LATE BOMMANKKODEN MALINGAN RESIDING AT ETHRUKAYAM,PULLOOR VILLAGE, HOSDURG TALUK KASARAGOD DIST. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): --------------- BABU, S/O.GEORGE, RESIDING AT KALLANCHIRA, BALAL VILLAGE AND POST,HOSDURG TALUK KASARAGOD DIST ADV. SRI.SUBHASH CYRIAC THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.1218/2010 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OFTHE DELIVERY WARRANT. EXT.P2: COPY OF THE DELIVERY RECEIPT ISSUED BY THE PETITIONER. EXT.P3: CERTIFIED COPY OF E.P.NO.235/2009 AND ORDERS PASSED THEREON. EXT.P4: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER STATING THAT THERE IS NO ORDER IN RSA NO.48/08 TO STOP THE EXECUTION. RESPONDENT'S EXHIBITS : NIL. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. ---------------------------------- O.P.(C).No.1218 of 2010 ----------------------------------- Dated this the 23rd day of February, 2011 JUDGMENT The petitioner is the decree holder in O.S.No.199 of 1997 on the file of the court of the Munsiff of Hosdurg. The decree is for recovery of possession and for permanent injunction. The decree was passed on 25.6.2001. The decree of the trial court was confirmed by the appellate court. 2. The petitioner filed E.P.No.106 of 2007 to execute the decree. The executing court overruled the objections raised by the respondent and delivery was ordered to be effected. The Amin delivered the property on 29.9.2007 with police aid. E.P. was closed recording satisfaction of the decree. O.P.(C) No.1218/2010 2 3. After the delivery was effected, the respondent filed R.S.A.No.48 of 2008 against the appellate judgment and decree, with an application for condonation of delay. The delay was condoned. Thereafter, the Second Appeal was dismissed for default on 18.3.2009. However, the Second Appeal was restored as per the order dated 1.7.2009 and the Second appeal is pending. It is submitted that the Second Appeal is not even admitted as on today. 4. The petitioner alleged that the respondent committed trespass upon the property which was delivered and he started residing in a shed situated in that property, in violation of the decree. Thereupon, the petitioner filed E.P.No.235 of 2009 on 27.6.2009 under Order 21 Rule 32(1) of the Code of Civil Procedure. E.P.No.235 of 2009 is pending. The prayer made in the Original Petition is to issue a direction to the Munsiff's Court, Hosdurg to pass final orders in the E.P. expeditiously. O.P.(C) No.1218/2010 3 5. In paragraph 5 of the Original Petition, the petitioner stated the following : “As may be seen from the order sheet, the executing court issued notice to the respondent. After repeated steps notice was served and since there was appearance respondent was set ex parte and matter was posted for the evidence of the petitioner on 19.2.2010. On 7.4.2010, petitioner was examined as PW1 and Exhibits A1, A2 and A3 series were marked. After closing the evidence, the executing court posted the case for hearing on 21.5.2010. On that day petitioner was heard and it was adjourned for orders on 21.5.2010. On that day petitioner was heard and it was adjourned for orders on 15.6.2010. On 15.6.2010, the court suo motu reopened the matter for no reason whatsoever and posted the matter for steps on 23.6.2010 directing petitioner to take out Advocate Commissioner. Petitioner obliged to the same and filed application for appointment of commissioner to report about the violation of injunction already stated. Commissioner thereafter filed his report and sketch stating that the respondent is occupying the shed in the property. The court below accepted the report and sketch as Exhibits O.P.(C) No.1218/2010 4 C1 and C2 and posted the case for orders on 22.9.2010. On 22.9.2010, the court below again reopened the case and posted for further hearing to 25.9.2010 and adjourned the hearing to 27.9.2010, 28.9.2010, and finally to 29.9.2010. On that date the matter was again heard and adjourned the Execution Petition for orders on 4.10.2010. On that date the matter was again reopened for the reason that a Second Appeal is pending before this Hon'ble court and it was called on 8.10.2010. Petitioner filed an affidavit stating that there is no order in R.S.A.No.48/08 to stop the execution. A true copy of the said affidavit is produced and marked as Exhibit P4. However, the executing court although informed of the correct position regarding the Second Appeal pending before this Hon'ble Court failed to pass final orders in the Execution Petition.” 6. In the facts and circumstance mentioned above, there is no bar in the executing court in disposing of E.P.No.235 of 2009. The decree was once executed and the allegation is that in violation of the decree, the respondent trespassed upon the property. The petitioner is aged 64 years O.P.(C) No.1218/2010 5 and she is the senior citizen. Though she filed Execution Petition in 2009, the same is not disposed of so far. The learned counsel for the petitioner submitted that the respondents have not entered appearance in the Execution Petition, though they were served with notice. Still the Execution Petition is not disposed of. I am of the view that the Original Petition is liable to be allowed in these circumstances. Accordingly, the Original Petition is allowed. The executing court, namely, Munsiff's Court, Hosdurg, shall pass final orders in E.P.No.235 of 2009 in O.S.No.199 of 1997 as expeditiously as possible. K.T.SANKARAN JUDGE csl