IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 OP(C).No. 2185 of 2011(O) ------------------------- AGAINST THE ORDER DATED 07/07/2011 IN EP 429/2011 IN OS.430/1978 of PRINCIPAL MUNSIFF COURT,NEYYATTINKARA .................... PETITIONER: ------------------------------- RETNAMMA PILLAI, VADAKKE CHALACHALKONATHU ROADARIKATHU PUTHEN VEEDU, MARANALLOOR DESOM & VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP RESPONDENT(S): --------------- 1. SUSEELAN, ANU BHAVAN, KARINGAL, KUTTARATHALAKKAL, MARANALLOOR DESOM & VILLAGE, PIN-695 121. 2. VASANTHI, KARINGAL, KUTTARATHALAKKAL MELE PUTHEN VEEDU, MARANALLOOR DESOM & VILLAGE, PIN-695 121. 3. CHELLAMMA PILLAI CHANDRIKA KUMARI AMMA, VADAKKE CHALACHALKONATHU ROADARIKATHU PUTHEN VEEDU, MARANALLOOR DESOM & VILLAGE, PIN-695 121. 4. VELAYUDHAN PILLAI RAVEENDRAN NAIR, VADAKKE CHALACHALKONATHU ROADARIKATHU PUTHEN VEEDU, MARANALLOOR DESOM & VILLAGE, PIN-695 121. ADV. SHRI B.KRISHNAMANI FOR R2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.2185/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF COMMON JUDGMENT IN AS NO.200/95 AND 207/95 OF THE SUB JUDGE, NEYYATTINKARA EXT.P2 A TRUE COPY OF JUDGMENT DATED 30.03.2002 IN OS NO.430/1978 EXT.P3 A TRUE COPY OF JUDGMENT DATED 12.11.2010 IN AS NO.208/2002 BEFORE THE SUB COURT, NEYYATTINKARA EXT.P4 A TRUE COPY OF EXECUTION PETITION IN EP 429/2002 EXT.P5 A TRUE COPY OF OBJECTION IN O.S.NO.430/1978 //TRUE COPY// P.A. TO JUDGE THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2185 of 2011 -------------------------------------- Dated this the 11th day of July, 2011. JUDGMENT Petitioner is the first defendant and first judgment debtor in O.S.No.430 of 1978 and E.P.No.429 of 2002 of the court of learned Principal Munsiff, Neyyattinkara. The predecessor-in-interest of respondents, the original plaintiff obtained a decree for redemption of mortgage. Petitioner who is said to be an assignee mortgagee had raised a plea of tenancy and kudikidappu. The plea of tenancy was referred to the Land Tribunal and was found against. The suit was decreed and as regards the claim of kudikidappu it was observed in Ext.P2, judgment, in paragraph 8 that the claim is deferred for the time being, to be considered at the time of eviction. Appellate court as seen from Ext.P3, judgment did not interfere with the finding entered by the trial court. I am told that petitioner has already preferred a Second Appeal as R.S.A.No.555 of 2011 and the second respondent has filed a Caveat but, that appeal has not so far been admitted. In the meantime, decree holders filed Ext.P4, execution petition for delivery of property where also by Ext.P5, objection petitioner claimed kudikidappu over the property involved and the house situated thereon with a request to refer the question to the Land Tribunal for a decision. Executing court has not referred the issue to the Land Tribunal and instead, ordered delivery. Prayer in this petition is to direct the executing court to issue carbon copy of the impugned order and in the meantime stay proceeding in E.P.No.429 of 2002. Learned counsel has contended that since the appellate court in Ext.P3, judgment has confirmed the finding of trial court that the issue regarding kudikidappu is to be considered at OP(C) No.2185/2011 2 the time of eviction and hence that finding stands the executing court was bound to refer the question to the Land Tribunal. I have heard learned counsel for second respondent as well. According to the learned counsel question of kudikidappu itself did not arise for a decision and that matter is yet to be decided in case R.S.A. No.555 of 2011 is admitted. 2. Having regard to the controversy raised before me, it appears to me that it is appropriate that the executing court is directed to keep delivery proceeding in abeyance for some time so that it is open to the petitioner to challenge the impugned order. Resultantly this Original Petition is disposed of in the following lines: i. Learned Principal Munisff, Neyyattinkara is directed to issue copy of order dated July 7, 2011 in E.P.No.429 of 2002 in O.S.No.430 of 1978 of that court (claimed to be applied for as per A. No.1581 of 2011 dated 08.07.2011), if it is in order and as per the relevant rules as early as possible and at any rate, within a week from the date of receipt of a copy of this judgment. ii. It is directed that the delivery proceedings in respect of the house and property over which petitioner has claimed kudikidappu will stand in abeyance for a period of two weeks from this day. THOMAS P.JOSEPH, Judge. cks