IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 20259 of 2009(O) --------------------------------------- AGAINST THE ORDER IN EA 79/05 & 74 /2006 IN EP 118/05 IN OS.158/1993 of MUNCIFF COURT,PATTAMBI .................... PETITIONER(S): ------------------------ SAROJINI, W/O.PATTIKARAVALAPPIL GOVINDAN, MUTHUTHALA AMSOM DESOM, OTTAPALAM TALUK. BY ADVS.MR.SANTHEEP ANKARATH SMT.N.N.PRASEEDA RESPONDENT(S): ------------------------- 1. KRISHNAN, S/O.THADATHIL DECEASED PARAGODEN, THRITHALA AMSOM DESOM, OTTAPALAM TALUK. 2. MUHAMMEDUNNI, S/O.KALLINGAL VALAPPIL DECEASED MAMMY, THRITHALA AMSOM DESOM, OTTAPALAM TALUK. 3. HAKEEM, S/O.PADINJAREPEEDIKAYIL ABDULLA, DO. DO. 4. AYISHA, W/O.HAKKEEM, DO. DO. 5. YOOSUF, S/O.PADINJAREPEEDIKAYIL ABDULLA, DO. DO. 6. SALEENA, W/O.YOOSUF, DO. DO. 7. MUHAMMED RAFEEQUE, S/O. THACHARAKUNNATH DECEASED MUHAMMED, DO. DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.20259 OF 2009 -------------------------- Dated this the 29th day of July 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to Ext.P5 and set aside Ext.P5 order. ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the Munsiff Court, Pattambi, to take back E.A Nos.75/2005 and 74/2006 in E.P No. 118/2005 in O.S No. 158/1993 on its file and allow the same. iii) Issue such other orders as are deemed fit and proper in the circumstances of the case. W.P.(C).No.20259 OF 2009 Page numbers 2. Petitioner is one among the defendants in O.S 158/1993 who was latter transposed as one among the plaintiffs in the suit, which was one for partition. Pursuant to passing of a preliminary decree allotting share to the parties who are entitled as such, in the suit property, a final decree was also passed accepting the request and plan of the commissioner who conducted inspection, measured the property and determined the specific properties to be given to the sharers. It is submitted by the counsel that before delivery was effected he moved an application against some of the parties to the suit and also strangers, seeking a declaration that the counter petitioners in his application have no right over the property and sought for a mandatory injunction directing them to demolish a foundation which is stated to have been constructed in the property. Admitted case of the W.P.(C).No.20259 OF 2009 Page numbers petitioner is that while such application was pending, the plaintiff got delivery of the property through court. Second respondent has contended that he is not a party to the suit and that the application moved against him under Section 47 of the Code of Civil Procedure is not maintainable. The learned Munsiff after considering the objections raised by the respondents and taking note of the facts and circumstances involved dismissed the application holding that the application will not lie under Section 47 of the Code of Civil Procedure. Ext.P5 is the copy of that order. Propriety and correctness of Ext.P5 order is challenged in the petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made W.P.(C).No.20259 OF 2009 Page numbers and taking note of the facts and circumstances presented with reference to Ext.P5 order impugned in the petition and also other materials produced, I find no notice to the respondents is necessary and hence it is dispensed with. After delivery of the property was taken over in execution any complaint whatsoever or any obstruction caused by any person to the property delivered over the petitioner seeks to pursue a previous application moved alleging interference over that property not acknowledged by the parties in the suit, but also by some strangers. As against a stranger application under Section 47 is maintainable only if it is shown that his claim is under a party to the proceeding, but, there is no whisper or allegation that the stranger impleaded claim right under a judgment debtor in the proceeding. Further more the reliefs sought for declaration and mandatory injunction in an application under W.P.(C).No.20259 OF 2009 Page numbers Section 47 of the Code of Civil Procedure that too after an application filed before the delivery was taken over and its prosecution after such delivery without objection is prima facie not entertainable. I do not find any impropriety and illegality in the order passed by the court below in dismissing the petition. The writ petition lacks merits and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv