IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 WP(C).No. 32813 of 2007(F) ---------------------------------------- PETITIONER: -------------------- SHAJI,S/O.LATE ABRAHAM, THAKIDIYIL HOUSE, VADAVATHOOR KARA AND POST, VIJAYAPURAM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENTS: ------------------------- 1. MATHEW ALIAS BABY,S/O.MATHAN, MANJACKAL HOUSE,CHERUVALLY KARA AND VILLAGE KOTTAYAM DISTRICT. 2. RAGHAVAN NAIR,S/O.RAMAN NAIR, CHOORAPPADIYIL HOUSE, CHERUVALLY KARA AND VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32813/2007 F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF JUDGMENT DTD. 11/06/98 IN O.S.NO.528/96 OF THE MUNSIFF'S COURT AT KANJIRAPPALLY. EXT.P2: COPY OF PETITIONER'S APPLICATION SUBMITTED BEFORE THE LAND TRIBUNAL KOTTAYAM ON 17/05/07. EXT.P3: COPY OF E.A.NO.71/07 FILED BY PETITIONER IN E.P.NO.8/04 IN O.S.NO.528/96 OF THE MUNSIFF'S COURT AT KANJIRAPPALLY. EXT.P4: COPY OF JUDGMENT DTD. 20/08/07 IN WP(C) NO.17033/07 OF THIS HON'BLE COURT. EXT.P5: COPY OF THE PLAINT IN O.S.NO.71/07 OF THE SUB COURT AT PALA. EXT.P6: COPY OF THE COMMISSION REPORT FILED ON 4/08/07 IN O.S.NO.71/07 OF THE SUB COURT AT PALA. EXT.P7: COPY OF PETITIONER'S APPLICATION DTD. 10/10/07 FILED IN E.A.71/07 IN E.P.8/04 IN O.S.NO.528/96 OF MUNSIFFS COURT, KANJIRAPPALLY. EXT.P8: COPY OF JUDGMENT DTD. 17/10/07 IN WP(C) NO.30910/07 OF THIS HON'BLE COURT. EXT.P9: COPY OF ORDER DTD. 16/10/07 IN E.A.71/07 IN E.P.8/04 IN O.S.NO.528/96 OF THE MUNSIFFS COURT, KANJIRAPPALLY. EXT.P10: COPY OF PETITIONER'S APPEAL SUIT NO.116/07 FILED BEFORE THE LEARNED SUB JUDGE AT PALA. EXT.P11: COPY OF THE STAY PETITION (I.A.1702/07) FILED IN APPEAL SUIT NO.116/07 OF THE LEARNED SUB JUDGE AT PALA. EXT.P12: COPY OF I.A.NO.4/08 IN OS.NO.71/07 FILED BEFORE THE SUB COURT AT PALA ON 7/12/07 BY THE PETITIONER. EXT.P13: COPY OF T.P. O.P.NO.2/08 FILED BY PETITIONER BEFORE THE DISTRICT COURT, KOTTAYAM. 2ND RESPONDENT'S EXHIBIT: EXT.R2(A): COPY OF THE JUDGMENT DTD. 17/03/2007 IN A.A.128/2006 ON THE FILES OF THE DISTRICT COURT, KOTTAYAM. /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 32813 OF 2007 = = = = = = = = = = = = = = = Dated this the 7th day of February, 2008. J U D G M E N T This writ petition is preferred with a prayer to direct the Subordinate Judge, Pala to pass orders on Ext.P11 application and action of the Munsiff in not referring the matter to the Land Tribunal as illegal and for a stay of the proceedings in the execution petition. The brief facts necessary for the disposal of the writ petition are given as follows. A suit O.S.528/96 was filed by the 2nd respondent in the O.P. against the first respondent for specific performance of a contract. The Court granted a decree in 1998 and thereafter an execution petition had been filed as E.P.8/04 wherein delivery was ordered. Then enters the present writ petitioner with obstruction claiming that his father was a tenant of 42.60 Ares of land including 11.25 Ares which is the subject matter of the decree that he is a tenant entitled to fixity of tenure and therefore the execution cannot be W.P.C 32813 OF 2007 -:2:- allowed and delivery has to be withdrawn. This was opposed by the other side. Thereafter the claim application was considered as E.A.71/07 in the execution petition which was dismissed. Against that appeal is preferred before the Subordinate Judge, Pala as A.S.116/07 and along with the same there is also an application for stay of the execution of the decree. Meanwhile the writ petitioner has approached the civil Court again with a suit for declaration which I am informed is not pending for the time being, on account of the dismissal for default. So the whole question revolves upon the fact that whether the writ petitioner herein is a tenant of the property as contended by him and whether he is entitled to fixity of tenure. It is also alleged before the executing Court that the matter has to be referred to the Land Tribunal for a finding under Section 125(3) of the Land Reforms Act. I had perused Ext.P9 order and in that order the learned Munsiff has considered the question of reference and relying upon a decision of this Court that in execution proceedings reference is not necessary, proceeded to decide the issue but whether it is correct or not is again a question to be decided by the appellate court where A.S.116/07 is pending. W.P.C 32813 OF 2007 -:3:- 2. The learned counsel for the writ petitioner submits before me the Presiding Officer who is considering the appeal against the claim application is the Officer who had passed the judgment in O.S.528/96, a decree for specific performance and therefore it is not fair on his part to hear the said appeal. I cannot agree with the same but I do not express my opinion for the reason I am informed some transfer applications are pending before the District Judge, Kottayam. The learned counsel for the respondent/decree holder would submit before me that his client is aged 83 years and he may be permitted to enjoy the usufructs of the decree which he had obtained after a long drawn litigation. But, unfortunately, there is an intervener who claims tenancy right with respect to the property and the said claim is pending before the appellate Court, now it may not be correct to rush through the delivery of the property when the said appeal is pending and the present writ petitioner is prosecuting the appeal. Therefore, in the fitness of things, I feel delivery has to be deferred till a decision is taken in the appeal and at the same time the appeal must also be directed to be disposed of within a time frame. Therefore I W.P.C 32813 OF 2007 -:4:- dispose of the writ petition as follows. (1) The Subordinate Judge, Pala, before whom A.S.116/07 is pending is directed to consider that appeal after hearing both sides and dispose of the same at any rate before the Court closes for summer holidays. (2) In any event the appeal is transferred to some other Court by orders of the District Judge, then such other Court also shall see that the matter is disposed of within the time stated by me and while sending the records the order of this Court also be communicated to the same Judge for compliance of the directions. (3) Till a decision is taken on the appeal the executing Court is directed to defer the delivery of the property. M.N. KRISHNAN, JUDGE. ul/-