IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 OP(C).No. 3631 of 2011(O) ---------- ------------------------- E.P. NO. 9/2011 IN OS.94/2009 OF MUNSIFF COURT, KOYILANDY .................... PETITIONERS ---------------------- 1. FOUSIYA, AGED 41 YEARS, W/O.MOIDEEN KOYA, ELLUVALAPPIL, SWASTHAM, RESIDING AT KAITHAVALAPPIL HOUSE, PANTHALAYANI AMSOM, KOTHMANGALAM AMSOM, KOYILANDY TALUK. 2. MOIDEEN KOYA, AGED 55 YEARS, S/O. HUSSAIN, COOLIE, ELLUVALAPPIL, SWASTHAM, RESIDING AT KAITHAVALAPPIL HOUSE, PANTHALAYANI AMSOM, KOTHMANGALAM AMSOM, KOYILANDY TALUK. BY ADVS. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENTS: ---------------------- SHRI MAHAMOOD, S/O. PAREED HAJI, AGED 62 YEARS, POOZHIYIL, NASARULLA NIVAS, MANAMAL, PANTHALAYANI AMSOM, KOTHAMANGALAM DESOM, KOYILANDY TALUK-673 306. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Scl. OP(C).No. 3631 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTOCOPY OF COMMON ORDER DATED 9.11.2010 IN I.A.NO.828 OF 2009 AND I.A.NO.829 OF 2009 IN O.S.NO.94 OF 2009 IN O.S NO.94/2009 OF THE COURT OF MUNSIFF, KOYILANDY. EXT.P2: PHOTOCOPY OF THE ORDER DATED 19.10.2011 IN E.P.NO.9 OF 2011 IN O.S.NO.94 OF 2009 OF THE COURT OF MUNSIFF, KOYILANDY. RESPONDENTS' EXHIBITS : NIL TRUE COPY PA TO JUDGE Scl. THOMAS P. JOSEPH, J. ---------------------------------------- O.P.(C) No. 3631 OF 2011 ------------------------------------------ Dated this the 10th day of November, 2011. J U D G M E N T Judgment Debtors in E.P No.9 of 2011 in OS 94 of 2009 of the court of learned Munsiff, Koyilandy are the petitioners before me requesting to quash Ext.P2, order for delivery of property in favour of respondent. Respondent is the elder brother of first petitioner. The second petitioner is the husband of first petitioner. The suit property belong to the respondent as per assignment deed No.311 of 1983. Petitioners are residing in the said property on the strength of a permission granted by the respondent. While so, respondent issued notice to the petitioners demanding them to vacate the premises. As they refused, respondent filed O.S No. 94 of 2009 for a decree for mandatory injunction and an ex parte decree was passed in the suit. Petitioner filed IA Nos. 828 of 2011 and 829 of 2011 to set aside the ex parte decree and to condone the delay of 33 days. Learned Munsiff allowed those application by Ext.P1, order dated 09/11/2010 on condition of payment of cost of Rs.3000/- within one month from the date of the order. It is admitted that cost was not deposited. Later learned Munsiff passed Ext.P2, order, directing delivery of property in E.P No.9 of 2011. Ext.P2 order is under challenge. O.P.(C) No. 3631 OF 2011 2 2. Learned counsel submits that respondent is none other than the elder brother of the first petitioner and that it was on the assurance given by the respondent that petitioners started residence in the suit property since 9.8.2007 onwards. It is contended by the learned counsel that petitioners have no other place to go. Lastly, it is requested that petitioners may be granted time to pay cost as directed in Ext. P1, order. 3. So far the last contention is concerned, application stands dismissed by non payment of the cost within the time stated therein. If that be so, remedy of petitioners was to challenge the said order in appeal as provided under law which has not been done. Hence the request to grant time to pay cost cannot be allowed. 4. So far Ext.P2, order is concerned, petitioners have no conceivable right over the property as revealed from the pleadings before me. Nor do I find reason to interfere with Ext.P2 order. 5. But having regard to the submission of learned counsel that petitioners have no other place to reside and have 6 children to be taken O.P.(C) No. 3631 OF 2011 3 with them, I am inclined to grant some time to vacate, but subject to conditions. Resultantly, this original petition is disposed of granting a months' time from this day to the petitioners to vacate the suit property subject to the condition that petitioners shall, before 18/11/2011 file affidavit in the executing court undertaking to vacate the premises on the expiry of time granted hereby without putting forth any claim or objection whatsoever. This order will not stand in the way of petitioners requesting the executing court for grant of further time if any required to vacate property and if any such request is made, the executing court may decide that request after hearing the respondent also and pass appropriate orders in that regard, if necessary subject to appropriate conditions. THOMAS P. JOSEPH, JUDGE. Scl.