IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 WP(C).No. 19203 of 2006(J) -------------------------- AGAINST THE ORDER IN EP 64/2004 IN OS.70/2000 of M.C.,PARAPPANANGADI .................... PETITIONERS: ------------ 1. ADANTE PURAKKAL SAREEFA, D/O ASSAINAR KUTTY, CHETTIPPADI, ALUNGAL BEACH, PARAPPANANGADI AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. CHERIYA BAVA INSANE) REPRESENTED NEXT FRIEND ADANTE PURAKKAL SAREEFA DO. (1ST PETITIONER). 3. MOIDEEN KOYA, S/O. ASSAINARKUTTY, DO. BY ADV. SRI.K.K.MOHAMED RAVUF ADV. SRI. M.S. NARAYANAN RESPONDENTS: ------------- 1. KADALUNDI KARANTE PURAKKAL CHIRIYA BAVA, S/O. MOHAMMED, PARAPPANANGADI AMSOM DESOM, TIRURANGADI TALUK, P.O. CHETTIPPADI, MALAPPURAM DISTRICT. 2. MAMMATHIYA, W/O. MOHAMMED, DO. DO. 3. SAFIYA, D/O. MOHAMMED, DO. DO. 4. KADEEJA, DO. DO. 5. SARAMOL, DO. DO. R1,R3 & R4 BY SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 19203/06 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE DECREE IN OS 70/00 OF THE MUNSIFF COURT, PARAPPANANGADI EXT.P2. COPY OF THE COMMISISON REPORT EXT.P3. COPY OF THE FINAL DECREE EXT.P4. COPY OF THE EXECUTION PETITION AND THE REPORT OF THE AMIN EXT.P5. COPY OF THE EP 64/04 FILED BY THE PETITIONERS IN THAT EP FOR POLICE HELP EXT.P6. COPY OF THE REQUEST TO DIRECT THE AMIN TO DELIVER THE PROPERTY AS PER THE DECREE SCHEDULE EXT.P7. COPY OF THE ORDER DT. 13.12.04 /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 19203 OF 2006 --------------------- Dated this the 12th day of March, 2008 JUDGMENT This writ petition is preferred with a prayer to set aside the order dated 13.12.04 and 9.2.05, whereby the court dismissed the execution petition. 2. After hearing both sides, I feel the court below had not applied its mind in dismissing the execution petition for the reason that proper materials had not been supplied. The writ petitioners herein are the allottes in a partition decree and they moved an application for execution to deliver the property allotted to them under the final decree. When the Amin went to the spot to effect delivery of the property, the respondents herein obstructed it on the ground that it is their property. Ext.X1 is a document executed in favour of these persons by one Kunjalia in 1978. The subject matter under Ext.X1 is three and three quarter cents of property comprised in Re. Sy No. 42/4 of Parappanangadi Amsom. The court below should have conducted an enquiry, before issuance of a Commission to find out whether there are any materials to issue a Commission at that stage. WPC NO 19203/06 2 It has to be remembered that the final decree application was disposed of after appointing a Commissioner and demarcating the property, which has been accepted by the court. So until and unless there are valid materials to show it otherwise, the court cannot jump into a conclusion by directly asking the Commissioner to visit and identify the property. 3. Therefore, I set aside the order passed by the court below and direct the court to restore the execution petition and then conduct an enquiry into the claim after directing the parties to submit their pleadings before the court for consideration and then consider the matter. I make it clear that in case if there is necessity, then appoint a Commissioner and dispose of the matter in accordance with law. The writ petition is disposed of accordingly. Parties are directed to appear before the court below on 10.4.08. M.N.KRISHNAN, JUDGE vps WPC NO 19203/06 3 WPC NO 19203/06 4 WPC NO 19203/06 5