IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 WP(C).No. 29573 of 2009(O) -------------------------- AS.18/1995 of SUB COURT,KOTTARAKKARA OS.155/1986 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONERS: --------------- 1. K.J.SANTHAKUMARI, D/O.LATE GOVINDAN KUNJU PILLAI, THENGUVILA VEEDU, P.O.AMBALAKKARA, VALAKOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 691 532. 2. KUNJU PILLAI SASIDHARAN @ SASI, THENGUVILA VEEDU, P.O.AMBALAKKARA, VALAKOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 691 532. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS: --------------- 1. VALLI REMANI, AJI BHAVAN, ERAMMURI, ANCHAL VILLAGE, P.O. 691 306, PATHANAPURAM TALUK, QUILON DISTRICT. 2. KUNJU PILLAI PRABHAKRAN, RETD EMPLOYEE OF CFAT, RESIDING AT NO.17, BHARATHIDASAN II STREET, PALLIKKARANI PO CHENNAI 601 302. 3. K.LALITHAMMA, CHANTHOOR VEEDU, AYANIVELIKULANGARA SOUTH, P.O.KARUNAGAPPALY P.O. 690 518, KARUNAGAPPALLY TALUK, QUILON DISTRICT. 4. K.NALINI, THATTOTTU PUTHEN VEEDU, KARYARA PO, PUNALUR 691 332. 5. K.LEELA, RANI BHAVAN, VETTATHU MUKKU KARUNAGAPPALLY 690 518. WPC 29573/09 6. K.SARALA, BINU BHAVAN, KALAYANADU PO PUNALUR. 7. K.J.LALGI, THENGUVILA VEEDU AMBALAKKARA, VALAKOM. 8. K.J.PRABHA, THENGUVILA VEEDU AMBALAKKARA, VALAKOM. 9. K.J.SANTHOSHJI, THENGUVILA VEEDU AMBALAKKARA, VALAKOM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.29573 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 20th October, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To issue a writ of mandamus or any direction or order for directing the learned Munsiff to pass fresh orders in E.P. No.91 of 2007 in O.S.No.155 of 1986, as reversed in A.S.No.18 of 1995, in case the order now passed by the learned Munsiff on 30.3.2009 is set aside O.P.No.16201 of 2009. 2. To pass any other order or direction or injunction directing the 1st respondent herein not to execute the decree in O.S.No.155 of 1986 as superseded by judgment in A.S.No.18 of 1995 by the Sub Court, Kottarakkara on 30.9.2004 till the objections filed by all the respondents in the E.P. to be heard and finally decided. 2. Petitioners and respondents 2 to 9 are stated to be the children of one Govindan Kunju Pillai, the 1st defendant in O.S.No.155 of 1986 on the file of the Munsiff Court, Kottarakkara. The 2nd respondent and 2nd petitioner respectively were the second and third defendants in the above suit. On the death of the first defendant, the suit filed by the first respondent was decreed in favour of the first W.P.C.No.29573/09 - 2 - respondent, against which the plaintiff and also the defendants filed two appeals before the Sub Court, Kottarakkara. Though the appeals were referred to the Adalat and some settlement arrived, it was not honoured to by the 2nd defendant and, thereupon, the court below passed P1 common judgment upholding the claim of the plaintiff/1st respondent allowing her to recover possession of the property. In the execution proceedings taken by the first respondent, the legal heirs of the first defendant who passed away were also substituted. Objections were raised to the execution by some of them contending that there was no settlement in the Adalat, and further, the first defendant had passed away before P1 common judgment was rendered in appeals by the Sub Court, Kottarakkara. The grievance canvassed by the petitioners is that without considering the merit of the objections, the executing court negativing such objections is proceeding with the execution of the decree. The order passed by the executing court is sought to be set aside with direction to reconsider the merit of the objections canvassed by the petitioners against the execution of the decree, invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioners. Even the order W.P.C.No.29573/09 - 3 - purported to have been passed by the executing court which is challenged has not been produced in the Writ Petition. The first defendant has passed away before P1 common judgment was pronounced in appeal by the Sub Court, Kottarakkara is the objection canvassed to challenge the executability of the decree. If that be, it is a matter to be agitated by taking appropriate measures as provided by law and not in execution of the decree passed by the appellate court. Similarly, the challenge that there was no settlement in Adalat when the appeals were pending, which later led to passing of P1 common judgment, can not also be raised an objection to challenge the execution of the decree. There is no merit in the Writ Petition, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE