IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 WP(C).No. 22893 of 2008(A) -------------------------- (AGAINST ORDERS DTD. 7/06/2008 AND 3/07/2008 IN EA NOS. 232/2007, 117/2008 & 121/2008 IN EP.NO.67/2007 IN OS.116/2002 of MUNSIFF COURT, TIRUR) .................... PETITIONER: ------------------- MEETHRATHAKATH MOIDEEN, AGED 50 YEARS, S/O. ABDURAHIMANKUTTY, TIRUR TALUK, PACHATTIRI AMSOM, PARAVANNA DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS: ------------------------- 1. KARUKAYIL MUNDI, 65 YEARS, D/O. MANU, PACHATTIRI AMSOM, MUIVAZHIKKAL DESOM.P.O, PARAVANNA, TIRUR, MALAPPURAM DISTRICT. 2. KARUKAYIL MANI, S/O. MUNDI, PACHATTIRI AMSOM, MUIVAZHIKKAL DESOM P.O, PARAVANNA, TIRUR, MALAPPURAM DISTRICT. 3. KUIYEDATH VELAYUDHAN, S/O.KAKKU, PACHATTIRI AMSOM, MUIVAZHIKKAL DESOM P.O, PARAVANNA, TIRUR, MALAPPURAM DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.22893 OF 2008 =========================== Dated this the 29th day of July, 2008 JUDGMENT Petitioner is an assignee of third respondent judgment debtor in E.P.67/2007 in O.S.116/2002 on the file of Munsiff Court, Tirur. This petition is filed under Article 227 of Constitution of India to quash Exts. P8 and P9 orders passed by the Munsiff in the applications filed in the execution petitions. Case of the petitioner is that subsequent to the assignment in his favour third respondent, his assignor colluded with the decree holder and a compromise decree was passed which is not binding on the petitioner as he was not impleaded in the suit and learned Munsiff wrongly held that in view of Section 52 of Transfer of Property Act, petitioner is not entitled to challenge the decree. It was argued that a collusive decree is void and executing court should have considered the question of validity of W.P.(C)22893/2008 2 the decree and hence Ext.P8 and P9 orders are to be quashed. 2. Advocate Sri. K.Ramachandran who appeared for first respondent submitted that the only prayer in execution petition is to demarcate the way as provided under in the compromise decree and the Amin deputed by the executing court has already demarcated way and therefore Writ Petition has become infructuous. 3. On hearing the learned counsel, registry was directed to ascertain from the executing court the stage of the execution petition. It is reported that the Amin deputed has demaracted the way as provided under the decree and submitted a report. In such circumstance, the Writ Petition is dismissed as infructuous. 4. Though learned counsel vehemently argued that petitioner who is not a party to the decree is entitled to challenge the decree on the ground that W.P.(C)22893/2008 3 the compromise decree is collusive and Section 52 of Transfer of Property Act has no application, I do not find it necessary to consider that question in this Writ Petition. Petitioner is at liberty to challenge the decree by filing a suit or by any other appropriate mode. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006