IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 37768 of 2007(U) --------------------------------------- CMA.NO.102/2004 OF DISTRICT & SESSIONS COURT,TRIVANDRUM, OS.NO.110/1958 OF III ADDL.M.C.,TRIVANDRUM.. .................... PETITIONERS: --------------------- 1. DEVAKI ANTHARJANAM, ELAMKULATHU KUZHIKKATTU PUTHEN MADATHIL, CHERUVAIKKAL, SREEKARIYAM, THIRUVANANTHAPURAM. 2. EASWARAN POTTI SOMANATHAN, DO, DO. 3. EASWARAN POTTI RAVI, DO DO. 4. EASWARAN POTTI SREEKUMAR , DO, DO. BY ADV. MR.B.KRISHNA MANI. RESPONDENTS: ------------------------ 1. NARAYANARU THRIVIKRAMARU, EDAYANAVANATHU MADOM, KUZHIMANVILAKATHU MURI, KEEZHATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, NOW RESIDING AT TC 37/280, FORT, THIRUVANANTHAPURAM. 2. MADHAVAN POTTI, ELAMKULATHU MANGALATHUMELE MADAM, KUNNATHU MURI, CHERUVAIKKAL VILLAGE, THIRUVANANTHAPURAM. *ADDL. RESPONDENTS 3 TO 6 IMPLEADED: 3. N.N. SARASWATHY ANTHERJANAM, W/O. LATE MADHAVAN POTTI, RESIDING AT ELAMKULATHU MANGALATHUMELE MADOM, KUNNATHU MURI, CHERUVAKAL VILLAGE, THIRUVANANTHAPURAM. W.P.(C). NO.37768/2007-U: 4. M. VASUDEVAN, S/O. LATE MADHAVAN POTTI, RESIDING AT ELAMKULATHU MANGALATHUMELE MADOM, KUNNATHU MURI, CHERUVAKAL VILLAGE, THIRUVANANTHAPURAM. 5. M. BEENA, D/O. LATE MADHAVAN POTTI, RESIDING AT ELAMKULATHU MANGALATHUMELE MADOM, KUNNATHU MURI, CHERUVAKAL VILLAGE, THIRUVANANTHAPURAM. 6. M. NARAYANAN, S/O. MADHAVAN POTTI, RESIDING AT ELAMKULATHU MANGALATHUMELE MADOM, KUNNATHU MURI, CHERUVAKAL VILLAGE, THIRUVANANTHAPURAM. *ADDL.R3 TO 6 ADDED AS PER ORDER DTD. 22/10/08 IN I.A. NO.10195/05. R1 BY ADV. MR. G.S.REGHUNATH, ADDL.R3 TO R6 BY ADV. MR. D.SOMASUNDARAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37768/2007-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 12/01/1996. EXT.P.2: COPY OF THE ORDER DTD. 16/12/1998. EXT.P.3: COPY OF THE APPLICATION DTD. 25/07/2003. EXT.P.4: COPY OF THE COMMON ORDER DTD. 03/01/2004. EXT.P.5: COPY OF THE E.A. NO. 962/2003 DTD. NIL. EXT.P.6: COPY OF THE ORDER DTD. 03/01/2004. EXT.P.7: COPY OF THE ORDER DTD. 03/01/2004. EXT.P.8: COPY OF THE MEMORANDUM OF APPEAL DTD. 06/04/2004. EXT.P.9: COPY OF THE JUDGMENT DTD. 03/03/2006 PASSED BY THE DISTRICT COURT, THIRUVANANTHAPURAM. EXT.P.10: COPY OF THE ORDER DTD. 05/11/1976. EXT.P.11: COPY OF THE DEED DTD. 05/09/1959. EXT.P.12: COPY OF THE PLAINT DTD. 21/10/2003. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. HARUN-UL-RASHID, J. --------------------------- W.P.(C).No.37768 of 2007 - U ----------------------------- Dated this the 4th day of March, 2009 J U D G M E N T The legal heirs of the 4th defendant in O.S.No.110/1958 on the file of the Munsiff's Court, Thiruvananthapuram are the petitioners in this writ petition. The first respondent is the plaintiff/decree holder. A decree for redemption was passed by the Munsiff Court which was confirmed in first appeal and subsequently in second appeal. During the execution proceedings, petitioners raised claim of fixity of tenure. The land Tribunal negatived the claim against which petitioners filed C.R.P.246/1996 before this Court. This Court originally allowed the revision petition which was set aside by the Supreme Court and rejection of question of tenancy by the trial court was restored by the Supreme Court. The Supreme Court directed the High Court to consider the other questions. Subsequently, this Court again considered other questions as directed by the Supreme court and by judgment dated 13.6.2003 in the same CRP confirmed the order of the executing court and further W.P.(C).No.37768 of 2007 - U 2 directed the executing court to facilitate delivery of the property scheduled in item No.2 at the earliest taking into account the delay. 2. In compliance with the said direction and in view of the dismissal of rejection of claim for tenancy, the executing court ordered delivery and considered other claims raised. The executing court ordered delivery on 4.9.2003 and delivery was effected on 5.9.2003 as per the report of the amin deputed by the court. 3. Petitioners/judgment debtors filed Ext.P5 petition (E.A.No.962/2003) contending inter alia that though delivery report has been submitted, in fact no delivery was effected and that they are still is in possession and enjoyment of item No.2 property. They have also contended that their possession and enjoyment is by virtue of mortgage deed No.3014/1124. The executing court disposed of E.A.No.962/2003 by Ext.P6 order. The executing court considered the rival contentions of the parties and held that there is absolutely no grounds are made out for filing a review petition and that the attempt of the petitioners W.P.(C).No.37768 of 2007 - U 3 is to cause further inconvenience to the decree holder who has obtained decree for more than 3½ decades back. Therefore the review petition was dismissed. The petitioners did not challenge Ext.P6 order before the revisional court and the said order has become final from the date of the order i.e., 3.1.2004. 4. Subsequently E.A.No.1274/2003 was filed by the same petitioners praying to set aside the delivery. Ext.P7 is the order passed by the executing court dismissing the petition. Executing court in the said order observed that E.A.No.962/2003 filed for reviewing the order of delivery stands dismissed and held that the present application is devoid of any merit and that all questions regarding right of the parties have been already agitated and adjudicated by the courts. Ext.P7 order is challenged before the District Court, Thiruvananthapuram by filing C.M.A. Ext.P9 is the order passed by the court. The appellate court held that no appeal will lie against the impugned order and therefore the appeal was dismissed. 5. The prayer in the writ petition is to quash Exts.P7 and P9 orders passed by the executing court. The reasons for W.P.(C).No.37768 of 2007 - U 4 dismissal of review petitions (E.A.Nos.962/2003 and subsequent petition 1274/2003) are dealt with by the executing court in Exts.P6 and P7 orders. Ext.P9 is the appellate order passed against Ext.P7 order. The executing court considered the questions involved and the series of judgments passed by this Court, Supreme Court and executing court at the relevant time. The executing court also considered the direction issued by this Court in c.R.P.246/1996. I am also of the opinion that the order effecting delivery is not challenged effectively before the court either by filing E.A.No.962/2003 or by filing E.A.No.1274/2003. Even the amin who went to the spot and effected delivery was not examined. None of the judgment debtors are examined in support of the contentions. Absolutely no evidence was adduced in support of the averments contained in the petition filed after delivery of the property. The finding of the executing court that the subsequent petitions filed are without any bona fides and is intended to harass and to cause hardship to the decree holder is absolutely correct. W.P.(C).No.37768 of 2007 - U 5 6. Learned counsel for the petitioner inter alia contended that, as far as Ext.P10 order of the Land Tribunal has issued a certificate, respondent in Ext.P10 has filed Ext.P12 suit against the 1st respondent herein. Learned counsel for the 1st respondent submitted that Ext.P12 suit has been withdrawn by the plaintiffs. I find no merit in filing this writ petition. Accordingly, this writ petition is dismissed with a cost of Rs.5,000/- to the 1st respondent. HARUN-UL-RASHID, JUDGE. bkn/-