IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 16626 of 2009(W) ------------------------------------------- O.S.NO.77/2001 OF SUB COURT, MAVELIKKARA. ....... PETITIONER(S): ------------------------- JIJI PRASAD,W/O.PRASAD,THEKKE THAYYIL, MUTHUKULAM NORTH MURI,MUTHUKULAM VILLAGE, MAVELIKKARA. BY ADV. MR.S.MOHANAN RESPONDENT(S): --------------------------- 1. RAJU,S/O.KUTTAPPAN,YAVANIKA HOUSE, VETTUVENI MURI,HARIPAD. 2. SUMATHY,D/O.BHARATHY,SREENILAYATHIL VEEDU, NANGIARKULANGARA,CHONGOLI VILLAGE. R1 BY ADV. MR.S.SHANAVAS KHAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.16626 of 2009 - O --------------------------------- Dated this the 3rd day of July, 2009 J U D G M E N T This writ petition is filed seeking the following relief. “To issue a direction to the Sub court, Mavelikkara to keep in abeyance the delivery proceedings in the execution proceedings in O.S.No.77/2001 till disposal of Ext.P3 application.” 2. Petitioner is resisting a decree passed in a suit for specific performance. That decree, admittedly, was passed against the mother of the petitioner and the first respondent is the decree holder. It is her case that the property covered by the decree is a joint family property obtained by her mother in which the petitioner and her brother have got equal rights. After passing of the decree she has moved a application under Order XXI Rule 97 CPC in which an order has already been passed by the court for keeping in abeyance the delivery of the property. Apprehension raised by the petitioner is that the court below without adjudicating his right, title and interest as mandated by the rule may order delivery of the property. The decree holder had earlier approached this Court for transferring the execution W.P.(C).No.16626 of 2009 - O 2 petition before another Sub Court, which was resisted by the petitioner. The request of the decree holder was declined by this Court, and copy of that order is Ext.P5. But in Ext.P5 order disposing the transfer petition, a direction was issued to the execution court to dispose the application for delivery on or before 30.6.2009. In view of that direction, according to the petitioner, the court below may proceed with the order for delivery of the property without adjudicating his petition moved under Order XXI Rule 97 CPC. 3. I heard the counsel on both sides. 4. The learned counsel for the second respondent submitted that an application moved by the petitioner under Order XXI Rule 97 CPC has been entertained by the execution court and it is pending for adjudication. But the further submission of the counsel is that at the time when the direction was issued by this Court in Ext.P5 order, for expeditious orders on the petition filed for delivery, the present petitioner could have brought to the notice of the court about pendency of his petition, but, it was not done. Whatever that be, once a direction is given by this Court, the execution court is bound to comply W.P.(C).No.16626 of 2009 - O 3 with the direction in letter and spirit. If a petition under Order XXI Rule 97 CPC moved by the petitioner is pending for disposal, naturally, delivery can be ordered only after disposal of that petition. So much so, the time limit fixed by the court has to be taken into account by the court for disposing of whatever petitions which are stated to be pending and which have to be disposed of before passing an order delivering the property, if such order is required to be passed in the proceedings. Now it has been brought to the notice of the court that an application moved by the petitioner under Order XXI Rule 97 CPC entertained by the court is pending adjudication, I find that in the fitness of things, the time limit fixed by this Court given in Ext.P5 order requires to be modified by granting a period of two months more and that too in view of the fact that there has been an interim stay in the present petition passed by this Court stalling the execution proceedings. The execution court is directed to expedite the adjudication, if so found essential, on the petition moved by the petitioner under Order XXI Rule 97 CPC and after passing appropriate orders thereof, dispose of the application for delivery, at any rate, on or before 31.8.2009. W.P.(C).No.16626 of 2009 - O 4 The writ petition is disposed of as above. Send a copy of this judgment to the execution court concerned, and hand over a copy to the counsel on both sides on usual terms. Parties are directed to appear before the execution court on 10.7.2009. S.S.SATHEESACHANDRAN, JUDGE. bkn/-