IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 34793 of 2009(O) -------------------------- AGAINST THE ORDER DATED 10/06/1998 IN EP.198/2007 IN OS.36/1997 of MUNSIFF COURT, OTTAPPALAM .................... PETITIONER(S): --------------- CHANDRIKA D/O. PALLIYALIL LATE KOTHAMMA, 66 YEARS, MUNDAMUKA AMSOM, CHUDUVALATHUR DESOM, OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): --------------- 1. KRISHNADAS, S/O. LATE PALLIYALIL KARUPPAN @ KRISHNANKUTTY. 2. KRISHNAKUMAR S/O. LATE PALLIYALLIL KARUPPAN @ KRISHNANKUTTY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.34793 OF 2009 -------------------------------- Dated this the 3rd day of December 2009 ---------------------------------------------------------- JUDGMENT Petitioner is the 16th defendant in O.S No. 36 of 1997 on the file of the Munsiff Court, Ottapalam. The above suit is one for partition in which a preliminary decree and final decree had already been passed. Subsequent to passing of the decrees as aforesaid in the above suit, petitioner had filed Ext.P8 suit seeking a decree of injunction in respect of one of the items covered by the partition suit against some of the defendants in that suit. That suit is pending. An appeal preferred by the petitioner against the final decree in the partition suit is also stated to be pending before this court. Meanwhile the 12th and 13th defendants in the partition suit have moved an execution petition for separate possession of the property allotted to them under the final decree passed in that suit. Resisting that execution, the petitioner sought for stay of delivery in respect of the items of the property covered by Ext.P8 suit. The learned Munsiff after hearing both sides declined that request vide Ext.P7 order clarifying that in case any decree W.P.(C).No.34793 OF 2009 Page numbers is passed in Ext.P8 suit in favour of the petitioner, he can apply for restitution. Propriety and correctness of Ext.P7 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned 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 respondents is necessary and hence it is dispensed with. The learned counsel for the petitioner submitted that he is aggrieved only with respect to the direction given by the court that the petitioner can apply for restitution in the event of a decree being passed in her favour in Ext.P8 decree but without providing safeguards protecting her right to get such a restitution. Specific direction/order safeguarding her rights for restitution in the event of a decree being passed in her favour in Ext.P8 suit if at all delivery is effected pursuant to the decree passed in the partition suit, according to the counsel, has to be provided for. W.P.(C).No.34793 OF 2009 Page numbers 3. Perusing Ext.P7 order with reference to the exhibits produced in the writ petition and also the submissions made by the learned counsel for the petitioner, I find, a direction/order in the manner desired by the petitioner or suggested by the counsel is impermissible in the given facts of the case. In case the petitioner has got any special right over the property covered by Ext.P8 suit which formed part of one of the items of the partition suit where under a final decree had been passed, needless to point out, if that special right had been negatived under the final decree, she has to challenge and question it in an appeal against that decree. It is submitted that already petitioner has preferred an appeal against the final decree and that appeal is pending before this court. Whatever be the orders passed by the execution court in executing the final decree passed in the partition suit, it will be subject to the final decision to be rendered in the appeal. That itself is a sufficient safeguard protecting the rights of the petitioner, if any, over the property in respect of which she has filed a separate suit. Writ petition is closed S.S.SATHEESACHANDRAN, JUDGE vdv