IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 WP(C).No. 35128 of 2009(O) -------------------------- AGAINST THE ORDER DATED 16.11.2009 IN EP.12/2009 IN OS.266/1998 of PRL. MUNSIFF'S COURT, KANNUR .................... PETITIONER: --------------- K.V.GIRIJA @ GIRIJA NAMBIAR W/O.K.O.NARAYANAN NAMBIAR AGED 74 YEARS, CHERUKUNNU AMSOM DESOM, P.O.CHERUKUNNU, KANNUR DISTRICT. BY ADV. MR. C.P.PEETHAMBARAN RESPONDENT: --------------- PULIYANGODAN CHEMMARAN KULANKARA PADMANABHAN NAIR, S/O.PATTI AMMA, CHELERI AMSOM, DESOM, THROUGH POWER OF ATTORNEY HOLDER K.V.NARAYANAN, S/O.NARAYANAN NAIR CHERUKUNNU AMSOM DESOM, P.O.CHERUKUNNU, KANNUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.35128 of 2009 - O --------------------------------- Dated this the 7th day of December, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To call for the records leading to issuance of Ext.P8 order from the Principal Munsiff Court, Kannur and set aside Ext.P8 order and consequently declare that the decree in O.S.No.266/1998 on the file of the Munsiff Court, Kannur is not executable.” 2. Petitioner is the judgment debtor in E.P.No.12 of 2009 in O.S.No.266 of 1998 on the file of the Munsiff Court, Kannur. In the above suit a decree for recovery of possession and putting up boundary had been granted in favour of the respondent/plaintiff in the suit. That suit was tried with another suit filed by the petitioner as O.S.No.234 of 1998 in which he had sought for a decree of perpetual prohibitory injunction against the respondent. It is submitted that the respondent was granted a decree of recovery of possession of the property claimed by him in his appeal as the trial court has declined that relief. According to the petitioner in respect of the portion of the W.P.(C).No.35128 of 2009 - O 2 property over which recovery of possession had been granted in his suit he had obtained a decree of injunction in his suit against the respondent and it was confirmed in appeal also. So much so, when execution was taken by the respondent pursuant to the decree granting recovery of possession and fixation of boundary he had raised objections to the executability of the decree contending that it was in contra with the decree of perpetual prohibitory injunction decreed in his favour. Without considering the executability of the decree the court below has ordered for delivery of the property, is the grievance espoused to invoke the visitorial jurisdiction of this Court to assail that order passed by the execution court. 3. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. 4. At the time of hearing, learned counsel for the petitioner submitted that the decree granted to the respondent in O.S.No.266 of 1998 by the appellate court in first appeal has W.P.(C).No.35128 of 2009 - O 3 been challenged before this Court by way of a second appeal, but, since there is delay in presentation of the appeal, it has not so far been received on file. Though the petitioner has challenged the executability of the decree there is no consideration of that objection while passing Ext.P8 order for delivering the property, is the further submission of the counsel. Perusing Ext.P8 order with reference to the submissions made by the counsel and also the other exhibits tendered with the petition, I find the execution court is duty bound to execute the decree. Remedy of the petitioner, if at all he has got any grievance over the decree granted in favour of the respondent in O.S.No.266 of 1998, is to challenge it, which has already done by him. But, such challenge has not been entertained for the reason that on its presentation it was time barred. A decree of injunction has been granted in his favour in his suit is not sufficient to resist the respondent from getting recovery of possession in terms of the decree granted in his favour. Execution court cannot be found fault with for passing a reasoned order as to why the objection raised by the petitioner as against W.P.(C).No.35128 of 2009 - O 4 the executability of the decree cannot be entertained where it is shown prima facie the objection canvassed on the basis of the decree of injunction in his favour deserve to be noticed only for its rejection. There is no merit in the writ petition, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-