IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 18405 of 2009(O) -------------------------- OS.171/2006 of SUB COURT,KATTAPPANA .................... PETITIONER(S): ------------------------ 1. JAIMON, S/O. JOSEPH,SRAKATHU HOUSE, VELLOR KARA, PAMPADY VILLAGE, PAMPADY, KOTTAYAM DISTRICT. 2. JOE MATHEW, AGED 44 YEARS,S/O.T.J.MATHEW, GRACE VILAS, THUMMANAPPERIL, PERISERRY MURIYIL, PULIYOOR, CHENGANNUR. BY ADV. MR.S.SACHITHANANDA PAI RESPONDENT(S): --------------------------- THE BRANCH MANAGER,CENTRAL BANK OF INDIA, KUMILY BRANCH, KUMILY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.18405 of 2009 - O --------------------------------- Dated this the 1st day of July, 2009 J U D G M E N T This writ petition is filed by the plaintiff in O.S.No.171/2006 on the file of the Sub court, Kattappana. Ext.P1 is the copy of the plaint in that suit. The relief claimed in the suit are thus: “A decree of permanent prohibitory injunction restraining the defendant or men under it from reaslising any amount due to the defendant from Smt.Mariamma Kurian, Thomas Oommen, P Ramachandran or Sunny George from the plaint schedule properties”. 2. The allegations raised in the plaint would indicate that the suit has been filed for a perpetual prohibitory injunction to restrain the defendants from executing a decree obtained in O.S.No.104/1998 of the Sub Court, Kattappana and that too pursuant to dismissal of a claim petition moved by the very same plaintiff under Order XXI Rule 58 CPC in the execution proceedings relating to the decree in the above suit. The plaintiff had applied for appointment of a commissioner for identifying the property. Commissioner filed an interim report that the property W.P.(C).No.18405 of 2009 - O 2 is not identifiable without survey records. Subsequently, the plaintiff moved another application before the court for a further local inspection and measuring of the property submitting that he has collected the survey records to enable the commissioner to measure the property with the survey records. The learned Sub Judge after considering the merit of the application dismissed it vide Ext.P3 order. Impeaching the correctness and propriety of Ext.P3 order, petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. 4. Having regard to the facts and circumstances presented and also the submissions made by the counsel for the petitioner, I find no interference with Ext.P3 order is called for, especially, where the allegations raised in Ext.P1 plaint indicate that its maintainability has to be examined as the first issue in the suit before proceeding with its trial. Learned Sub Judge is directed to consider the maintainability of the suit as the preliminary issue, in the light of the decision rendered by the W.P.(C).No.18405 of 2009 - O 3 Supreme court that a party resisting dispossession from a decree can resist it only in accordance with the provision under Order XXI Rule 97 CPC, whether it is anterior or subsequent to dispossession. A separate suit is not maintainable to stall the execution of a decree is the law as settled by the apex court. Subject to the above observation, this writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-