IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 28056 of 2009(O) -------------------------- AGAINST THE ORDER IN E.A.NO.335/2009 IN E.P.184/2008 IN OS.189/1978 of PRL.M.C.,KOZHIKODE-II .................... PETITIONER(S): --------------- 1. KUTTIYAMAN @ SHANMUGHAN S/O.KIZHAKKE THODIKAYIL CHOYIKUTTY POOLAKKODE AMSOM AND DESOM, KOZHIKODE TALUK. 2. SANTHA, W/O.LATE MADHAVAN KIZHAKKE THODIKAYIL, POOLAKKODE AMSOM AND DESOM, KOZHIKODE TALUK. 3. SHYJA, D/O.SANTHA KIZHAKKE THODIKAYIL, POOLAKKODE AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): --------------- 1. VATTAKALARIYIL NARAYANAN ,S/O.KUTTIRAMAN POOLAKKODE AMSOM DESOM,KOZHIKODE TALUK. 2. THAMU @ HARIDASAN S/O.KIZHAKKETHODIKAYIL CHOYIKUTTY POOLAKKODE AMSOM DESOM,KOZHIKODE TALUK. 3. PERAVAKUTTY @ BALAKRISHNAN NETTOOLI,POOLAKKODE AMSOM DESOM,KOZHIKODE TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.28056 OF 2009 (O) ----------------------------------- Dated this the 7th day of October, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records leading to Exts.P4 and P6 and to set aside the same; ii. to grant such other relief as this Honourable Court may deem fit and proper. 2. Petitioners are the 2nd defendant and the legal heirs of the 1st defendant in O.S.No.189 of 1978 on the file of the Munsiff Court, Kozhikode. The above suit was one for partition, in which preliminary decree and final decree had already been passed. The 4th defendant in the suit, nearly WPC.28056/09 2 nine years after the passing of the decree, has now taken steps for delivery of the property allotted to him with the assistance of the police. The challenge raised in the writ petition is against the orders passed by the court allowing the application of the 4th defendant for delivery of the property, and that too, with police assistance. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary, and, hence, it is dispensed with. The learned counsel for the petitioner, inviting my attention to the preliminary decree passed by the trial court and also the judgment rendered in the Second Appeal by this Court against Ext.P1 decree (Ext.P2), submitted that the final decree passed in the case was against the specific directions given in Ext.P2 judgment. Whatever that be, the remedy of the petitioner is to challenge the final decree, if it suffers from any serious infirmity, by taking appropriate proceedings. It is submitted by the counsel that an appeal has been preferred against the WPC.28056/09 3 final decree with a petition to condone delay. So far as the execution court is concerned, it cannot go behind the decree, and it is bound to execute the decree. There is no challenge against the decree as having been passed without jurisdiction or on the ground of nullity. So much so, I find no impropriety or illegality in the orders passed by the executant court, Exts.P4 and P6 challenged in the writ petition. The writ petition is disposed reserving the right of the petitioner to canvass his challenge in appropriate proceedings as provided by law. S.S.SATHEESACHANDRAN JUDGE prp