IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 OP(C).No. 1959 of 2011(O) ------------------------- (AGAINST THE ORDER DATED 16/06/2011 IN E.A.NO.84/2011 IN E.P.NO.14/2011 IN OS.214/2009 of PRINCIPAL MUNSIFF'S COURT,KOCHI) .................... PETITIONERS: ------------------------ 1. MOHANAN.A.B., S/O. BHASKARAN, AGED 71 YEARS, PANIKKAPRAMBIL HOUSE, NAYARAMBALAM, VYPEEN, ERNAKULAM DISTRICT. 2. GIRIJA, W/O. MOHANAN, PANIKKAPARAMBIL HOUSE, NAYARAMBALAM, VYPEEN, ERNAKULAM DISTRICT. 3. A.M. RENJITH, S/O. MOHANAN, AMMEPADATH HOUSE,NAYARAMBALAM, ERNAKULAM DISTRICT. 4. KRISHNARAJ, S/O. MOHANAN,AMMEPADATH HOUSE, NAYARAMBALAM, ERNAKULAM DISTRICT. BY ADV. SRI.DENIZEN KOMATH RESPONDENT(S): --------------------------- 1. GRACIOUS, S/O. AMBROSE, VADASSERY HOUSE, NAYARAMBALAM, VYPEEN, ERNAKULAM DISTRICT - 682 509. 2. ANTI, VADASSERY HOUSE, NAYARAMBALAM, VYPEEN, ERNAKULAM - 682 509. R1 & R2 BY ADV. SRI.T.N.SURESH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.1959/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE EXECUTION PETITION NO.14/2011 IN O.S.NO.214/2009 IN THE FILE OF PRINCIPAL MUNSIFF'S COURT, KOCHI. P2: COPY OF I.A.NO.832/2011 PREFERRERD BY THE PETITIONERS TO SET ASIDE THE EX-PARTE DECREE IN O.S.NO.214/2009. P2(A): COPY OF THE I.A.NO.845/2011 PREFERRED BY THE PETITIONERS TO CONDONE THE DELAY IN FILING PETITION TO SET ASIDE THE EX-PARTE DECREE IN O.S.NO.214/2009. P3: COPY OF THE NOTICE DTD. 26/10/2009 IN O.A.NO.170/2009 IN THE FILE OF LAND TRIBUNAL THRIPUNITHURA. P4: COPY OF E.A.NO.84/2011 IN E.P.NO.14/2011 IN O.S.NO.214/2009 IN THE FILE OF PRINCIPAL MUNSIFF'S COURT, KOCHI. P5: COPY OF THE ORDER DTD. 16/06/2011 IN E.A.NO.84/2011 IN E.P.NO.14/2011 IN OS.NO.214/2009 IN THE FILE OF PRINCIPAL MUNSIFF'S COURT, KOCHI. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE COMMON JUDGMENT DTD. 10/11/2004 IN O.S.NOS.430/2002& 456/2002 OF ADDL.MUNSIFF COURT, KOCHI. R1(B): COPY OF WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.214/2009 BEFORE THE ADDL.MUNSIFF COURT, KOCHI. R1(C): COPY OF THE DECREE DDTD. 9/07/2010 IN O.S.NO.214/2009 OF ADDL.MUNSIFF COURT, KOCHI. /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1959 of 2011 --------------------------------------- Dated this 20th day of July, 2011 JUDGMENT Respondents appear through counsel. 2. Petitioners are judgment debtors in E.P.No.14 of 2011 (in O.S.No.214 of 2009) of the Court of learned Principal Munsiff, Kochi. Respondents obtained an ex parte decee for eviction of petitioners from the suit property and the building situated thereon from the learned Additional Munsiff, Kochi and sought execution of that decree in E.P.No.14 of 2011 before the learned Principal Munsiff. Petitioners filed E.A.No.84 of 2011 under Order XXI of Rule 26 and 28 of the Code of Criminal Procedure (for short, "the Code”) requesting for stay of execution on two grounds; that they have already filed applications to set aside the ex parte decree and that an original application filed by them before the Land Tribunal on a plea of kudikidappu is pending consideration. Executing court dismissed that application by Ext.P5, order observing that the applications do not mention even the number of the applications or other details and counsel who represented petitioners in the executing court was not able to give details regarding that. Ext.P5, order is under challenge. O.P(C).No.1959 of 2011 -: 2 :- 3. Learned counsel for petitioners contend that petitioners have a genuine plea of kudikidappu over the property which matter is pending consideration before the Land Tribunal. It is submitted that the application to set aide the ex parte decree together with the application to condone delay of 210 days is also pending consideration before learned Additional Munsiff, Kochi and in the meantime if petitioners are evicted they will be put to irreparable loss and injury. 4. Learned counsel for respondents contends that petitioners have no challenge to the title of respondents in that they do not dispute that Chakrapani, the original owner had assigned the property in favour of respondents, contention of petitioners being only that the said assignment is bogus. It is also contended by learned counsel that the plea raised in the written statement (Ext.R1(b)) is one of irrecoverable license created by the said Chakrapani in favour of respondents and no claim of kudikidappu is raised. It is further contended that on the materials on record a claim of kudikidappu cannot genuinely arise for a decision so that a Civil Court was required to refer the question to the Land Tribunal for a decision. It is submitted that the original application was filed before the Land Tribunal only O.P(C).No.1959 of 2011 -: 3 :- after institution of the suit and hence decision of the Civil Court is binding on the Tribunal, under Sec.52 of the Transfer of Property Act. Reliance is placed on the decision of the Full Bench in Venkitarama Iyer Vs. Vesu Amma (1995(2) KLT 295). 5. I have gone through the contentions raised in Ext.R1 (b), written statement, where I do not find any plea of kudikidappu; instead, what is pleaded is that petitioners occupied the structure situated in the suit property under an irrecoverable license granted by the predecessor-in-interest of respondents. True, there is also a contention that the sale deed executed by Chakrapani in favour of respondents is bogus. 6. It is not disputed, though details are not mentioned in E.A.No.84 of 2011 that an applications to set aside the ex parte decree and condone the delay in filing the said application is pending consideration before the learned Additional Munsiff. Learned counsel told me that the said applications are posted on 18.09.2011. I am inclined to think that petitioners must be given an opportunity to prosecute the said applications and until then, the present possession of the property need not be disturbed. In that view of the matter I am inclined to interfere with Ext.P5, order passed by the learned Munsiff. O.P(C).No.1959 of 2011 -: 4 :- Resultantly this original petition is allowed. Ext.P5, order is set aside and E.A.No.84 of 2011 is allowed to the extent that the execution proceedings will stand in abeyance for a period of two months from this day or till learned Additional Munsiff has disposed of I.A.Nos.832 and 845 of 2011 whichever is earlier. It is open to the parties to request learned Munsiff to advance hearing of I.A.Nos.832 and 845 of 2011 and dispose of the same within the said period of two months. If any such request is made learned Additional Munsiff shall consider the request and pass appropriate orders having regard to the time during which this Court, by this order has granted stay of execution proceeding. (THOMAS P JOSEPH, JUDGE) Sbna/-