IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 9885 of 2009(O) AGAINST THE ORDER IN EP 62/84 IN OS.65/1974 OF SUB COURT, KOTTARAKKARA PETITIONERS : 1. SIVARAMAPILLAI, CHARUVILA VEEDU, ASUPATHRIKADU, VENTURE ESTATE, KAZHUTHURUTHY. 2. PRABHAKARAN, CHARUVILAPUTHENVEETIL THEKKETHIL, ASUPATHRIKADU, VENTURE ESTATE, KAZHUTHURUTTY. 3. SUDHAKARAN, CHARUVILAPUTHENVEETIL VADAKKATHIL, ASUPATHRIKADU, VENTURE ESTATE, KAZHUTHURUTTY. 4. SADASIVAN, PARAVILAVEEDU, ASUPATHRIKADU, VENTURE ESTATE, KAZHUTHURUTTY. 5. SUHRA, PUTHUVALPUTHEN VEEDU, ASUPATHRIKADU, VENTURE ESTATE, KAZHUTHURUTTY. 6. BHAGEERATHIYAMMA, CHANDRA VILASOM, VENTURE ESTATE, KAZHUTHURUTTY. 7. CHELLAPPAN PERUMAL, PARANKIMAMVILA VEEDU, ASUPATHRIKADU, VENTURE ESTATE, KAZHUTHURUTTY. 8. SHANMUGHAM, PULIMOOTIL, ASUPATHRIKADU, VENTURE ESTATE, KAZHUTHURUTTY. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP AND SMT.SURYA SASI RESPONDENT : M/S.HARISON'S MALAYALAM LTD., KOCHI, REPRESENTED BY ITS SENIOR MANAGER, ISFIELD ESTATE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 9885 OF 2009 O ------------------------------------------------------ Dated this the 26th March, 2009 JUDGMENT The fourth judgment debtor and the legal representatives and assignees of the other judgment debtors in O.S.No.65 of 1974, on the file of the Court of the Subordinate Judge, Kottarakkara, are the writ petitioners. The suit was filed for declaration of title and recovery of possession. Decree was passed on 26.10.1974. Execution was levied by the decree holder. Amin was deputed to effect delivery in terms of the decree. The Taluk Surveyor was also deputed to assist the Amin. Amin filed Ext.P3 report stating that the Surveyor could not locate the decree schedule property. The Surveyor filed Ext.P3 report stating that on inspection of the properties, it was found that the property in Sy.No.391/1, which is the decree schedule property, is found to be the same as in Sy.No.399/1 as per possession. He also stated that the property in Sy.No.399/1 is not included in the decree for recovery of possession. The Surveyor also submitted that the total extent of the property is more than sixteen acres and he could not locate the survey numbers of the properties. The Surveyor prayed for further time to identify the property and to comply with the order for delivery. The executing court passed Ext.P4 order dated 29.11.2008, which reads as follows: W.P.(C) NO.9885 OF 2009 :: 2 :: “Delivery not effected. Report filed. Seeking time to execute delivery on or before 19-12-08. Issue direction to Surveyor. For report to 20-12-2008.” 2. In the Writ Petition, it is stated that after Ext.P4 order the case was posted on 13.1.2009, 13.3.2009 and 27.3.2009. The petitioners sought adjournment of the case stating that they wanted to challenge Ext.P4 order. The petitioners' apprehend that delivery will take place without identifying the property. Ext.P4 order is sought to be set aside in the Writ Petition. Another relief sought for is to direct the court below to properly identify the decree schedule property before effecting delivery. 3. The challenge against Ext.P4 order is unsustainable. There is no case for the petitioners that the decree is not executable. On the report filed by the Amin and the Surveyor, the court below granted time. The judgment debtor is not entitled to challenge that order. The relief sought for by the petitioners for a direction to the executing court to identify the property is also unsustainable at this stage. It is for the executing court to decide upon the matters regarding delivery of the property in execution. If any property other than the decree schedule property is delivered and if any person is aggrieved by such a proceeding, he is not without any remedy. He can invoke his remedy under Section 47 of the Code of Civil Procedure before the executing W.P.(C) NO.9885 OF 2009 :: 3 :: court. The matters which are to be looked into by the executing court cannot be raised in a Writ Petition even before the time for raising such objections has arisen. The Writ Petition is without any merit and it is, accordingly dismissed. (K.T.SANKARAN) Judge ahz/