IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 9561 of 2009(O) ------------------------- AGAINST THE ORDER IN EP 618/07 IN OS.439/1990 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER(S): --------------- 1. THARA, W/O. SUDHAKARAN, KOZHIPPARAMBIL HOUSE, EDAMUTTOM, VALAPPAD, CHAVAKKAD TALUK, THRISSUR DIST. 2. JOSHI, S/O. SUDHAKARAN, DO...DO. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT(S): --------------- 1. SATHI, W/O. VASUDEVAN, KOZHIPPARAMBIL HOUSE, EDAMUTTOM DESOM, P.O. VALAPPAD, CHAVAKKAD TALUK,THRISSUR DIST. 2. SHIJOJ, S/O. VASUDEVAN, DO...DO... 3. SHIJITY, S/O. VASUDEVAN, DO...DO. 4. SHINE, DO...DO.... ADV. SMT.R.RANJINI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.9561/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE OBJECTION DATED 18.3.2008 IN E.P.NO.618/2007 IN O.S.NO.439/1990 OF THE MUNSIFF COURT, CHAVAKKAD. EXT.P2: COPY OF THE NOTICE DATED 17.3.2009 IN E.P.NO.618/2007 IN O.S.NO.439/1990, FOR SETTING SALE PROCLAMATION. EXT.P3: COPY OF THE PETITION ALONG WITH AFFIDAVIT DATED 12.8.2008 VIDE E.A.NO.531/08 IN E.P.618/2007 IN O.S.439/1990. EXT.P4: COPY OF THE PTITONER ALONG WTH AFFIDAVIT DATED 12.8.2008 VIDE E.A.NO.532/2008 IN E.P.NO.618/07 IN O.S.NO.439/1990. EXT.P5: COPY OF THE ORDER DATED 14.10.2008 OF MUNSIFF COURT, CHAVAKKAD IN E.A.531/2008 IN E.P.NO.618/2007 IN O.S.439/1990. EXT.P6: COPY OF THE ORDER DATED 14.10.2008 OF MUNSIFF COURT, CHAVAKKAD IN E.A.532/2008 IN E.P.NO.618/2007 IN O.S.NO.439/1990. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.9561 OF 2009 (O) ----------------------------------- Dated this the 8th day of October, 2009 J U D G M E N T The judgment debtors in E.P.No.618 of 2007 in O.S.No.439 of 1990 on the file of the Munsiff Court, Chavakkad, have filed this writ petition seeking mainly the following reliefs: i. to call for the records leading to Exts.P1 to P6. ii. to set aside Exts.P5 and P6 and P2 orders/notice of the Munsiff Court, Chavakkad in E.P.No.618/2007 in O.S.No.439/1990 by giving an effective opportunity of being heard to the petitioners regarding such matters. 2. The decree granted in the above suit was one for partition. Apart from allotting share in the immovable property covered by the suit, admittedly, the decree WPC.9561/09 2 holders/respondents were also granted a decree for realisation of mesne profits and also equalisation of owelty. In execution, after delivery of the property, without taking note of the decree granted towards owelty and mesne profits, it is submitted by the counsel for the respondents, the E.P. happened to be closed by order dated 2.7.2008. A review petition was filed for reopening the execution petition to consider the claim under owelty and mesne profits awarded under the decree. Admittedly, notice for review was given to the counsel who appeared for the judgment debtors. The court below allowed the review petition condoning the delay vide Exts.P5 and P6 orders. Those applications were allowed taking note that no counter was filed. The grievance canvassed by the petitioners/judgment debtors is that they have not been given notice on the petitions before reopening the execution petition, which was closed earlier, and further, the execution court had ordered notice to them under Order XXI Rule 66 of the C.P.C. 3. Having regard to the submissions made by the WPC.9561/09 3 counsel on both sides, I find an opportunity should be given to the petitioners to canvass their objections, if any, as to the executability of the decree with respect to the claim of the decree holders in respect of owelty and mesne profits awarded. The judgment debtors have got a case that interest for owelty and mesne profits awarded is not covered by the decree, but, in the execution petition, that claim is also raised. Whatever that be, the objection thereof has to be addressed before the court proceeding with the execution for realisation of the sum due towards owelty and mesne profits by sale of the property of the judgment debtors. However, I make it clear that the review of the previous order closing the execution petition by condoning the delay vide Exts.P5 and P6 orders, shall not be opened to further challenge at the instance of the judgment debtors. Ext.P2 notice issued shall stand withdrawn, and of no consequence. After considering the objections of the judgment debtors, the court shall proceed with the execution in accordance with law. The release of the amount deposited by the petitioners to the decree holders before the execution court under orders of this Court will be WPC.9561/09 4 subject to the orders passed after considering the objections raised by the judgment debtors. Writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp