IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 37057 of 2003(J) -------------------------- PETITIONER(S): --------------- SREELEKHA S.NAIR, NO.16, C-FLAT, FACT TOWNSHIP, UDYOGAMANDAL, ALWAYE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): --------------- 1. C.K.KURIAN, T.C.16/181, EASWARAVILASAM ROAD, JAGATHY, TRIVANDRUM. 2. M.LALITHA DEVI @ LALITHAKUMARI, T.C.15/1845, SUCHITHRA, FOREST OFFICE LANE, VAZHUTHACAUD, TRIVANDRUM. 3. L.CHITHRA OF -DO- -DO-. 4. L.SUMITHRA OF -DO- -DO-. ADV. SRI.D.KISHORE FOR R1 SRI.D.KISHORE FOR R2 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.37057/03 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.S.NO.1226/82 BEFORE THE IST ADDL.MUNSIFF COURT, TRIVANDRUM. EXT.P2: COPY OF THE APPLICATION IN E.A.NO.815/2003 IN E.P.NO.229/01 IN O.S.NO.1226/82 FILED BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 6.8.2001. EXT.P3: COPY OF THE ORDER DATED IN E.A.NO.815/03 IN E.P.NO.229/01 IN O.S.NO.1226/82 FILED BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM DATED 19.9.2003. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.37057 OF 2003 () ----------------------------------- Dated this the 17th day of March, 2010 J U D G M E N T Petitioner is one among the legal heirs of the defendant in O.S.No.1226 of 1982 on the file of the Ist Additional Munsiff Court, Thiruvananthapuram. In the above suit, the decree was passed in favour of the respondents declaring their title over B schedule pathway and allowing recovery of portions of that pathway, which had been reduced into possession by the defendant. After passing of the decree, the defendant passed away and his legal heirs were impleaded as additional judgment debtors in the execution proceedings. Revision petitioner is stated to be the 1st additional judgment debtor in the execution proceedings. The decree holders/respondents applied for appointment of an Advocate Commissioner and also the Surveyor to assist the Amin to effect delivery of the B schedule pathway as directed in the decree. The additional judgment debtors moved an application for review of that order canvassing a case that WPC.37057/03 2 they were not given notice of the appointment of commission in the petition so moved. They also sought for identification and demarcation of B schedule pathway by a Commission. The learned Munsiff dismissed that petition vide Ext.P3 order holding that on the trial side the B schedule pathway had been identified and the report and plan prepared by the Advocate Commissioner had been acted upon by the court in granting a decree in favour of the plaintiffs. Propriety and correctness of Ext.P3 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. The learned counsel for the respondents submits that delivery had been effected on 28.11.2003 and the present petition was filed by the 2nd judgment debtor canvassing for appointment of a commission after such delivery. It is further submitted that in the execution proceedings since personal service against them was found impracticable, on the orders of the court, substituted service was effected and, still, they remained absent. The execution WPC.37057/03 3 proceedings proceeded treating them as ex parte, and, then, according to the counsel, they moved an application, which being allowed, they participated in the proceedings. After perusing Ext.P3 order with reference to Ext.P2 application moved by the additional judgment debtors, I find the relief canvassed by them for identification of B schedule pathway when it had already been identified on the trial side and acted upon by the court deserve no merit at all. It also appears that the case canvassed by the additional judgment debtors that they had no notice of the execution proceedings is hardly susceptible when it is affirmed that delivery had taken effect through court before moving of the Ext.P2 application. There is no merit in the challenges canvassed against Ext.P3 order. Writ petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp