IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 21788 of 2009(O) -------------------------- E.A.NO.33/2009 IN E.P.NO.38/2008 IN OS.293/1996 of MUNSIFF COURT,ATTINGAL .................... PETITIONER(S): ------------------------ GURUDAS, S/O. VELAYUDHAN, THURUTHIYAMON PUTHEN VEEDU, THANNIYAM, ANAKUDI MURI, KALLARA VILLAGE. BY ADVS. MR.NAGARAJ NARAYANAN, MR.SAIJO HASSAN, MR.A.S.SABU, MR.BENOJ C AUGUSTIN, MR.RAFEEQ.V.K., MR.PRATHAP PILLAI. RESPONDENT(S): --------------------------- GOPALAKRISHNAN,S/O. PADMANABHAN, GAYATHRI, KESAVAPURAM DESOM, VELLALLOOR VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.21788 OF 2009 (O) ----------------------------------- Dated this the 3rd day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to set aside Ext.P6 and allow E.A.No.33/2009 in E.P.No.38/2008 in O.S.No.293/1996 on the file of the Munsiff Court, Attingal. ii. to issue such other reliefs as this Honourable Court may deem fit and proper in the circumstances of this case. 2. Petitioner, who suffered a decree for eviction and arrears of rent in O.S.No.293 of 1996 is challenging the order passed in the execution proceedings of that decree, whereby the application moved by him under Order XXI Rule 29 of CPC to stay the execution was dismissed by the execution court. He has also become a co-owner of the property from which he is sought to be evicted having purchased one half right over the property under a sale deed executed by the brother of the WPC.21788/09 2 decree holder, who had such right over that property, and as such, he is not liable to surrender vacant possession of the property in execution of the decree, and that he has also filed another suit for partition of the property, which too is pending, are the circumstances canvassed by the petitioner to move the application under Order XXI Rule 29 of CPC to stay the execution of the decree. The decree holder resisted the application filing objections. The learned Munsiff after hearing both sides, dismissed that application vide Ext.P6 order. Propriety and correctness of that order is challenged in the petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and considering the facts and circumstances presented with reference to Ext.P6 order, I find no notice to the respondent is necessary, and hence, it is dispensed with. Petitioner has obtained one half right over the suit property from which he sought to be evicted under the decree in execution, and if only he continues in possession of WPC.21788/09 3 the property, in the partition suit, he will be able to claim an independent relief to retain the possession over that portion of the property, submits the counsel. His application for stay of the execution moved under Order XXI Rule 29 of CPC till a decree is passed and allotment made under the suit for partition, is essential to advance the ends of justice, is the submission of the counsel. I do not find any merit in the submission. The relationship of landlord and tenant as between the decree holder and the judgment debtor/the petitioner continues and by getting title over a portion of a property from a sharer, he cannot resist the decree of eviction passed against him. He is bound to surrender vacant possession of the tenanted premises to the landlord, and if at all he has got title over any portion, to get such title and possession in the partition suit already filed by him. Now under the decree, he is directed to pay compensation at the rate of Rs.600/- per month till vacant possession is given, and in the event of a decree for partition, at the most, he need pay only one half of that amount, and so much so, this is a fit case where a stay of execution as canvassed should have been WPC.21788/09 4 allotted as otherwise petitioner would suffer serious injury, is another submission canvassed by the counsel. That submission is also meritless. He is bound by the decree passed in the suit for eviction and arrears of rent and to pay subsequent compensation till vacant possession is given. The effect of the decree will not in any way change by his purchaser one half share over the property from the title holder having such right. As a co-owner, his entitlement to be in possession and claim profits thereof over the property are all matters to be considered in the suit for partition and it has no impact or value in the execution proceedings in the decree passed against him for eviction and arrears of rent and liability to pay compensation till surrender of vacant possession to the landlord. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp WPC.21788/09 5