IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 12026 of 2010(O) --------------------------------------- AS.207/2006 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.486/2005 of I ADDL.M.C.,TRIVANDRUM .................... PETITIONERS: --------------------- 1. MARINA VARKEY,W/O.FRANCIS, T.C.11/1213-2, NANDANCODE, KOWDIAR, POST, THIRUVANANTHAPURAM (PTA PRESIDENT) 2. SUSAN SAM, W/O.RAJU, OOMMEN, T.C.4/2324,V.S.34, PURAVANKONAM, KOWDIAR,POST, THIRUVANANTHAPURAM. 3. ANITHA JOSE, W/O.RAJAN SANTHA PILLAI, T.C.22/1242, KAITHAYIL, MANNAMOOLA, PEROORKADA P.O THIRUVANANTHAPURAM (TEACHER). 4. SUSAN JOHN, W/O.GEORGE IYPE, T.C.9/808, ASSARISERIL HOUSE, KOLLAMPALLI P.O., SREEKARIYAM, THIRUVANANTHAPRUAM, (TEACHER) 5. BINU KOSHI,W/O. ABRAHAM, T.C.11/928, ABI VILLA, NALANAD JUNCTION, KOWDIAR P.O. THIRUVANANTHAPURAM (TEACHER). BY ADVS. SRI.K.V.SOHAN, SMT.SREEJA SOHAN.K, SRI.GEORGE JOSEPH PULIMOOTTIL, SRI.VINEETH KURIAKOSE, SMT.N.MAHALAKSHMI. RESPONDENTS: ------------------------ 1. MAMMAN THOMAS, S/O.LATE P.M.THOMAS, HILL CRESTGROVE, TC 11/1297, NANTHANCODE, THIRUVANANTHAPURAM. W.P.(C). NO.12026/2010-O: 2. KURIEN EAPEN THOMAS, S/O.LATE P.M.THOMAS, ELIA HOUSE, NANTHENCODE, THIRUVANANTHAPURAM. 3. SARAMMA ABRAHAM,W/O.ABRAHAM KOSHY, NELLUMMOOTTIL, GRACE HOUSE, SREEMULAM MARKET, ADOOR. 4. THOMAS THOMAS, S/O.LATE P.M.THOMAS, P.B.NO.1005,UMTATA, TRANSKEE, PIN-5100, SOUTH AFRICA, FROM ALI HOUSE,NANTHENCODE, THIRUVANANTHAPURAM. 5. THE VICAR, MARTHOMA ST.THOMAS CHURCH, PATTOOR, PATHIRIKARI MURI, VANCHIYOOR, THIRUVANANTHAPRUAM. 6. THE VICAR, JERUSALEM MARTHOMA CHURCH, NANTHENCODE, THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.12026 of 2010-O ------------------------------------- Dated 8th April 2010 Judgment In this Writ Petition filed under Article 227 of the Constitution of India, the petitioner challenges the execution proceedings taken out as per EP No.379/09 on the file of the Munsiff's Court-II, Thiruvananthapuram. 2. The claim of the petitioner is that the area is covered by the Rent Control Act. It is submitted that S.11 (1) of Act 206 of 1965 prohibits eviction of a tenant except in accordance with provisions of the Act. 3. It needs to be noticed that the suit was decreed in favour of the first respondent herein. The decree was confirmed both in the first appeal and in the second appeal. While disposing of the SA, this Court observed as follows : “At this stage, learned counsel for appellants requested six months' time to vacate the suit property since appellants are running an educational institution therein. WPC 12026/10 2 Learned counsel for the respondents is agreeable to granting six months' time provided appellants undertake to vacate the suit property on the expiry of the said period. Resultantly, the Second Appeal is dismissed in limine but appellants are granted six months time from this day to vacate the suit property subject to the following terms and conditions : (i) Appellants shall deposit in the trial court the entire arrears of rent due as per the decree of the trial court till 31.01.2010 on or before 15.02.2010. (ii) Future arrears of rent as per the decree of the trial court payable from 01.02.2010 onwards shall be deposited by the appellants in the trial court on or before 5th of every succeeding month. (iii) Appellants shall vacate the suit property as directed in the decree of the trial court on the expiry of the period of six months referred to above without putting forth any claim or objection on any count. (iv) Appellants shall file an affidavit in the trial court within a period of three weeks from this day undertaking to comply with the above terms and conditions.” WPC 12026/10 3 4. The execution of the decree was thereafter taken out. The issue regarding applicability of Act 2 of 1965 was never raised on the original side earlier and not even at the time of execution proceedings. Such a contention had been taken for the first time in the Writ Petition. If the petitioner had such a contention, he should have raised it before the Court below on the original side as well as in execution and without doing so, he cannot directly approach this Court, assailing the order of the executing court. Reserving the liberty of the petitioner to raise such a contention if available before the executing court and if he is so advised, this petition is dismissed. P.BHAVADASAN, JUDGE sta WPC 12026/10 4 WPC 12026/10 5