IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 12500 of 2009(O) -------------------------- OS.520/1997 of MUNSIFF COURT,ATTINGAL .................... PETITIONERS: --------------- 1. CHELLAMMA VALSALA, RESIDING AT THARISU BHOOMI, NEAR CRP CAMP, PALLIPPURAM, VALIYAVEETTU MURI. 2. MUHAMMED BASHEER ASHRAF, RESIDING AT THARISU BHOOMI, NEAR CRP CAMP, PALLIPPURAM, VALIYAVEETTU MURI. 3. VIJAYAN, S/O.RAGHAVAN, RESIDING AT THARISU BHOOMI, NEAR CRP CAMP, PALLIPPURAM, VALIYAVEETTU MURI. BY ADV. MR.SIBY MATHEW MR.PHILIP J.VETTICKATTU MR.B.PREMNATH RESPONDENT: --------------- MUHAMMED ISMAIL ABDUL KHARIM, RASHEED MANZIL, PALACHIRA, CHERUNNIYOOR VILLAGE, POWER OF ATTORNEY OF ABDUL RASHEED, S/O.MUHAMMED ISMAIL, NAZEER MANZIL, MADANTHAPACHA, NAVAIKULAM, KUDAVOOR VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.12500 of 2009 - O --------------------------------- Dated this the 25th day of May, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “Issue a writ of Certiorari or other appropriate writ, order or direction to quash Ext.P6 and pass appropriate orders”. 2. Petitioners were the defendants in O.S.No.520/1997, filed by the respondent/plaintiff, in which Ext.P1 judgment was passed ex-parte, declaring the title and possession of the plaintiff/respondent over the plaint schedule property with direction to the defendants/petitioners to remove the sheds in the property and surrender its vacant possession to the plaintiff/respondent. Plaintiff/respondent was also granted liberty to approach the court for execution of the decree in case of non- compliance of the direction to surrender the property by the defendants/petitioners. A decree for perpetual injunction was also passed against the defendants/petitioners from making any further construction in the schedule property and from tresspass W.P.(C).No.12500 of 2009 - O 2 upon it and doing any act interfering with peaceful possession and enjoyment by the plaintiff. Pursuant to that decree, defendants moved the trial court under Order IX Rule 1 CPC for setting aside the decree passed as ex-parte. Being unsuccessful, they challenged the same by way of an appeal with a petition to condone the delay. Delay was not condoned and appeal was not entertained. Pursuant to the dismissal of the proceedings as mentioned above, the decree holder proceeded with execution and the schedule property was delivered over from the possession of the defendants. Later, alleging obstruction and interference by defendants, the decree holder again moved an application before the executing court contending that after tresspassing upon the property, defendants had put up some sheds in the property. The application was resisted by the defendants contending that they have a right of kudikidappu for which an application moved before the Land Tribunal is pending for consideration. Defendants/petitioners also sought for a stay of proceedings in execution which was rejected under Ext.P6 order. Correctness and legality of Ext.P6 is sought to be impeached in this petition. W.P.(C).No.12500 of 2009 - O 3 3. After hearing the counsel for petitioners at length, and going through the materials produced and also examining the facts and circumstances involved, I find that this is not a fit case where the exercise of the extra ordinary supervisory jurisdiction of this Court under Article 227 of the constitution of India is called for. The petitioners who have suffered a decree which has become final. The decree holder is now resisted from enjoying the benefits of the decree raising a new plea that the petitioners have a right over kudikidappu over the structure put up in the schedule property. It has come up that the property was delivered over pursuant to execution of the decree and the decree holder has come into possession of the property. Subsequent claim put up by the judgment debtor on the basis of an application pending before the Land Tribunal contending that they have a right of kudikidappu over the structure in the schedule property is prima facie devoid of any merit. The learned Munsiff has rightly declined the stay of execution proceedings sought for by the judgment debtors. The learned counsel for the petitioners wanted this Court to make an observation reserving the right of the petitioners to challenge the decree passed under W.P.(C).No.12500 of 2009 - O 4 Ext.P1 judgment by way of a regular appeal. No such observation from this Court is required; if he is entitled to under law he can prefer such an appeal. The writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-