IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 WP(C).No. 9708 of 2009(O) ----------------------------------- OS.179/1982 of I ADDL.SUB COURT, THRISSUR ..... PETITIONER(S): ---------------------- RAMACHANDRAN, S/O.CHALIPPAT RAMANUNNY, CHALIPATT HOUSE, MADAMBY LANE, POOTHOLE DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK, POOTHOLE P.O. BY ADV. SRI.S.VINOD BHAT RESPONDENT(S): ------------------------ GEORGE, S/O.KUNNATHUPARAMBIL THOMAS, OLLUR VILLAGE, DESOM, THRISSUR TALUK, OLLUR P.O., THRISSUR. ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2009, THE COURT ON 29/06/2009 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.9708 of 2009 - O --------------------------------- Dated this the 29th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “To issue a writ order or direction directing the Sub Court, Thrissur to pass orders on Exts.P8 and P9 applications at the earliest.” 2. Notice given on admission, the respondent has entered appearance through counsel. I heard the counsel on both sides. 3. The facts involved are practically undisputed. Claims over a property having an extent of 16 cents comprising a shed, in Aranattukara Village, gave rise to a spate of litigations which were agitated in different forums, for the last more than three decades, but still, continuing unabated, with some of them between the same parties involved in the present proceedings. The above mentioned property belonged to one Rajan who executed a registered mortage deed No.4242/1976 in favour of the respondent in 1976. While the mortgage subsisted, one Karunakaran Nair instituted a suit for money as O.S.No.795/1977 W.P.(C).No.9708 of 2009 - O 2 against Rajan which was decreed for recovery of Rs.3,558/- with its interest. That suit was decreed on 29.10.1977. The decree holder filed an execution petition as E.P.No.576/1978 on 6.11.1978. In the execution of that decree, the property was brought to sale and in the auction it was purchased by one Haji A.B Kutty Sahib for Rs.4,625/- on 6.11.1978. The respondent instituted a suit for recovery of money against Rajan on the basis of the mortgage as O.S.No.179/82 before the Sub Court, Thrissur. In that suit, Karunakaran Nair who secured the money decree against Rajan, as referred to earlier, was the 3rd defendant. That suit was decreed on 22.8.86. In execution of the decree the mortgage holding was brought to sale and purchased by the decree holder/respondent in the present petition, and that sale was confirmed. Pursuant thereto, two persons namely, Santhosh and Davis claimed to be alienees of Rajan resisted the delivery, setting up a right over the property. But they did not press their claims which were dismissed as not pressed on 13.6.96. Meanwhile, Kutty Sahib in execution of his decree had also brought the property to sale and a sale certificate was issued W.P.(C).No.9708 of 2009 - O 3 to him on 24.10.88. Kutty Sahib obtained delivery of the property. Pursuant to the issue of a sale certificate, from the legal heirs of Kutty Sahib a sale deed over the property was taken by the petitioner on 12.6.95. On the basis of that sale deed the petitioner instituted a suit as O.S.No.159/96 before the Sub Court, Thrissur for a declaration that the decree and subsequent proceedings in O.S.No.179/82 are not binding on the suit property and for injunction restraining the decree holder in O.S.No.179/82, the present respondent, from getting delivery of the property on the basis of the sale certificate issued in that case. The petitioner also filed an application as E.A.No.631/96 on 25.6.96 under Order XXI Rules 97, 98 and 100 and Section 151 CPC, praying for a declaration of his right over the property under the sale deed obtained from the legal heirs of Kutty Sahib and for dismissal of the execution petition. However, petitioner, later made an endorsement in his application E.A.No.631/96 that it was not pressed and consequently it was dismissed as not pressed on 28.6.96. After the dismissal of that application, delivery was ordered. Petitioner then moved a petition under W.P.(C).No.9708 of 2009 - O 4 Section 83 of the Transfer of Properties Act tendering the mortgage money on 26.5.97. In that petition also, later, he made an endorsement that it was not pressed and the petition was dismissed on 31.3.1999. Suit filed by the petitioner for declaration that the decree in O.S.No.179/82 and the proceedings thereunder are not binding on him and for injunction against the respondent from taking delivery of the property was dismissed on 11.9.2000. Against dismissal of that suit, petitioner preferred an appeal as A.S.No.350/2000 before the District Court, Thrissur. In the appeal, the dismissal of the suit was reversed and the case was remanded. Against the order of remand the respondent preferred an appeal as C.M.A.64/2001 before this Court, and allowing that appeal the order of remand was set aside upholding the dismissal of the suit by the trial court. In the judgment in appeal, direction was also issued to expedite the delivery proceedings in O.S.NO.179/82. After dismissal of that appeal, petitioner moved an application before the execution court seeking review of the dismissal of his earlier petition E.A.No.631/96 moved under Order XXI Rules 97, 98 and W.P.(C).No.9708 of 2009 - O 5 100 CPC, which was dismissed as not pressed on 28.6.96, along with a petition to condone the delay of 4620 days in moving the application for review. Present writ petition is filed to direct the Sub Court, Thrissur where the proceedings pursuant to the sale certificate issued to the respondent in O.S.NO.179/82 for delivery of the property are pending, to consider and pass orders on the review petition and the delay condonation petition. Ext.P8 is the copy of the review petition and Ext.P9, the copy of the petition to condone the delay in filing Ext.P8 application. 4. I heard the counsel on both sides. 5. Previous suit O.S.No.159/96 was filed by the petitioner at a time when there was confusion regarding the right of a 3rd party to safeguard his property when it was proceeded in execution in a decree in which he was not a party, and the decision rendered thereof will not debar his right to resist the execution of the decree by prosecuting an application under Order XXI Rule 97 CPC, and he is entitled to seek a review of the dismissal of his application moved earlier since there was no adjudication of the claim raised in his petition previously, and it is W.P.(C).No.9708 of 2009 - O 6 a fit case for exercising the power vested with the court under Article 227 of the Constitution of India, and so much so, to advance the ends of justice, appropriate directions have to be issued to the subordinate court to expedite the hearing and disposal of Exts.P8 and P9 application and till then delivery of the property to the respondent on the basis of the sale certificate issued has to be kept in abeyance, is the submission of the learned counsel appearing for the petitioner. Pointing out the obstruction caused by the petitioner at various stages by filing petitions and suits, setting forth vexatious claims, the delivery of the property in execution of a validly obtained decree of the respondent is stalled, the learned counsel appearing for the respondent contended that there is no merit in Exts.P8 and P9 applications and it is yet another attempt by the petitioner to protract and delay the delivery of the property. Learned counsel handing over a copy of the judgment rendered in C.M.A.No.64/2001 invited my attention to the observations made in that judgment that the petitioner had submitted to the jurisdiction of the execution court and thereafter making the W.P.(C).No.9708 of 2009 - O 7 endorsement not pressed, got that petition dismissed. It is further submitted that this Court has taken note that the endorsement not pressed made in the execution application moved by the petitioner was made at a time when the petitioner cannot claim that he was not aware of the law that the execution court has to adjudicate his claim, and not by way of an independent suit. All along he had been prosecuting his suit O.S.NO.159/96 and, ultimately, after decision of the trial court that such a suit was not maintainable attained finality on 29.6.2009 in C.M.A.64/2001, petitioner has filed the present petition for review of the order dismissing his previous petition, which was dismissed as not pressed, with a condonation petition as an experimental venture to continue the litigation and thus deny the respondent from enjoying the fruits of his decree by getting delivery of the property, submits the counsel. 6. Having regard to the submissions made and the facts and circumstances presented and the nature of the relief claimed in the petition, I find considerable merit in the submissions made by the counsel for the respondent that this is not a fit case where W.P.(C).No.9708 of 2009 - O 8 the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India can be invoked to give a direction to the court below for expeditious disposal of Exts.P8 and P9 application and till then to stay the proceedings of the decree executed by the respondent. I do not want to express any opinion on the merits of Exts.P8 and P9 applications which are awaiting consideration by the learned Munsiff. But all the same, I cannot refrain from pointing out that rushing to this Court by the petitioner with the present petition soon after the disposal of C.M.A.No.64/2001 by judgment dated 5.3.2009, after moving two petitions, Exts.P8 and P9, before the execution court, seeking for issue of direction to that court for speedy disposal of such petitions cannot be appreciated. Perusing the writ petition, I find that there is no statement indicating that the petitioner has invited the attention of the execution court to Exts.P8 and P9 petitions urging for an early consideration of those petitions. Evidently, the petitioner by getting some directions in the present petition, want to impress upon the execution court that the petitions presented by him, Exts.P8 and P9, deserve serious W.P.(C).No.9708 of 2009 - O 9 consideration before ordering of delivery in the proceedings initiated on the decree obtained by the respondent. The filing of the present writ petition seeking directions from this Court has to be viewed in the backdrop of the observations made by this Court in C.M.A.No.64/2001 by judgment dated 5.3.2009, whereunder the merit of the application moved by the present petitioner under Order XXI Rule 97 of CPC and the endorsement made later on such petition as not pressed resulting its dismissal had been considered and, thereafter, on the request made by the respondent herein a direction had been issued to the execution court to proceed with the execution proceedings without further delay. This Court in the above C.M.A. has observed referring to the application moved by the petitioner under Order XXI Rule 97 of CPC in the execution proceedings and its dismissal on the endorsement made 'as not pressed' in the following words: “Ext.B2 (E.A.No.631/1996 moved under Order XXI Rule 97 CPC by the petitioner) establishes that after the institution of the suit respondent, realising that his rights are to be worked out, not in a suit but in W.P.(C).No.9708 of 2009 - O 10 the execution proceedings itself approached the execution court under Rule 97 to 103 of Order XXI of the CPC. It is to be borne in mind that that petition was filed on 21.6.1996, much after the declaration of law by the apex court inn Bhanwar Lal's case (supra) and the subsequent decisions. After submitting to the jurisdiction of the executing court, respondent made an endorsement in Ext.B2 petition through his counsel that petition is not pressed and thereafter got it dismissed.” Repelling the contentions advanced by the present petitioner, who was the respondent in the C.M.A, that the dismissal of Ext.B2, the petition moved by him under Order XXI Rule 97 of CPC, and the endorsement made 'not pressed', cannot be treated as a decision or adjudication or an abandonment of the claim relying on Kandapuzha Nadar and others v. Chithraganiammal and others ((2007) 7 SCC 65), this Court has further held that the principles covered by that decision cannot be applied to a case “where a petition is filed under Rule 97 of Order XXI of CPC and was got dismissed as not pressed. It is more so because the application was filed and the petition W.P.(C).No.9708 of 2009 - O 11 was not pressed at a time when the respondent cannot claim that he was not aware of the law that it is for the executing court to adjudicate his claim and not by an independent suit”. The decision in C.M.A.No.64/2001 has become final and conclusive and binding on the parties involved in the present proceedings. Such being the situation, the filing of the present petition seeking the direction to the court below for expeditious consideration of Exts.P8 and P9 applications even without inviting attention of that court to such petitions, cannot at all be considered as bona fide. The writ petition lacks bona fides, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-