IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 CRP.No. 783 of 2008() -------------------------------- E.P. NO.4/2007 IN OS. NO.224/1994 OF THE IIND ADDL. SUB COURT, THRISSUR. ..... REVN. PETITIONER(S): RESPONDENTS 7 TO 10/ADDL. JUDGMENT DEBTORS 4-7 -------------------------------- 1. LAKSHMI, AGED 67 YEARS, W/O. KUNNATHULLY LATE BHASKARAN, PERUMANNU DESOM, ERANELLUR VILLAGE, THALAPPILLY TALUK. 2. BEENA, AGED 38 YEARS, D/O. LAKSHMI, PERUMANNU DESOM ERANELLUR VILLAGE, THADAPPILLY TALUK. 3. NISHA AGED 32 YEARS, D/O. LAKSHMI, PERUMANNU DESOM, ERANELLUR VILLAGE, THALAPPILLY TALUK. 4. SUNEESH, AGED 25 YEARS, S/O. LAKSHMI, PERUMANNU DESOM, ERANELLUR VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT(S): PETITIONER/ RESPONDENTS 3 TO 6/DECREE HOLDER/ ------------------------- DEFENDANTS 3 TO 6. 1. VENUGOPALAN, @ VENU, S/O. KUNNATHULLY GOPOLAN, PERUMANNU DESOM, ERANELLUR VILLAGE, THALAPPILLY TALUK. 2. PARUKUTTY, W/O. KUNNATHULLY (LATE) GOPALAN, PERUMANNU DEOSM, ERANELLUR VILLAGE THALAPPILLY TALUK. 3. SAROJINI, W/O. KURUVINGAL SANKUNNY, KUMARANELLUR DEOSM, VADAKKANCHERY VILLAGE, THALAPPILLY TALUK. CRP. NO.783/2008 4. CHANDRAMATHY, W/O. KUNNATHULLY LATE BALAKRISHNAN @ BALAN, PERUMANNU DESOM, ERANELLUR VILLAGE THALAPPILLY TALUK NOW RESIDING CHANDRAMANY, C/O. VRINDA, PAMANTHALA P.O., KARAKULAM THIRUVANANTHAPURAM. 5. VRINDA, D/O. KUNNATHULLY LATE BALAKRISHNAN @ BALAN, PERUMANNU DESOM, ERANELLUR VILLAGE THALAPPILLY TALUK, PRESENT ADDRESS : VRINDA, SCIENTIST, TROPICAL BOTANICAL & RESEARCH INSTITUTION, P.O. PALODE, THIRUVANANTHAPURAM 69. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------------------------ C.R.P. NO.783 OF 2008 ------------------------------------------------------ Dated this the 23rd day of October, 2008 O R D E R Respondents 1 and 2 appear through counsel. Heard both sides. 2. Petitioners are the legal representatives of second defendant in O.S.No.224/1994 and second respondent, in E.P.No.4/2007 of the Court of II Additional Sub Judge, Thrissur. Respondents 1 and 2 obtained decree for recovery of possession of plaint schedule properties on the strength of their title, against respondents 1 and 2 in E.P.No.4/2007. In execution, respondents 1 and 2 in E.P.No.4/2007 filed objections. While so, second respondent in E.P.No.4/2007 died. His legal representatives (petitioners herein) were impleaded. They filed objection to execution. They claimed that they have a right of 'kudikidappu' in the scheduled property and that the schedule property is not identifiable. Learned II Additional Sub Judge C.R.P. No.783/2008 - 2- rejected the contention and ordered delivery. However, petitioners were granted one months' time to shift their residence. Delivery was ordered to be effected on 24-10-2008. Petitioners are aggrieved by that order and has come up in revision. 3. Learned counsel for petitioners submitted that the objection raised by the petitioners in the execution petition was not properly considered by learned Additional Sub Judge. 4. The contention that the property is not identifiable cannot be sustained since, respondents 1 and 2 in E.P.No.4/2007 had not raised such a contention either on the trial side or in execution side and at any rate the suit has been decreed, which has been confirmed in appeal also. 5. So far as claim of 'kudikidappu' is concerned, petitioners being legal representatives of the second respondent C.R.P. No.783/2008 - 3- in E.P.No.4/2007 can take up only such contention, which suit their character as legal representatives. They cannot set up any independent title or right over the schedule property in their capacity as legal representative. They could not also take up a contention, which was not raised by the deceased second respondent in E.P.No.4/2007. Learned II Additional Sub Judge, therefore, has rightly over-ruled the objections. There is no reason to interfere with the order of delivery. 6. At this stage, learned counsel for petitioners submitted that breathing time may be given to the petitioners to shift their residence. Learned counsel requested for three months' time. 7. Learned II Additional Sub Judge granted one months' time to the petitioners to shift residence. That opportunity was not availed by the petitioners. However, in the facts and circumstances of the case, I am inclined to grant 45 (forty five) C.R.P. No.783/2008 - 4- days' time from today to the petitioners to vacate the premises on condition that petitioners shall, within two days from this day file an unconditional undertaking to vacate the premises within the said period of 45 (forty five) days, before the II Additional Sub Judge, Thrissur in E.P.4/2007. In case of non-compliance, it will be open to the decree holders to proceed with E.P.4/2007 and seek delivery of the property. Learned II Additional Sub Judge shall defer delivery of the property to a date beyond 45 (forty five) days from today. With the above direction, C.R.P. is dismissed. Issue copy of this order today itself. THOMAS P. JOSEPH, JUDGE skr