IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WP(C).No. 17029 of 2006(B) -------------------------- OS.2/1971 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): --------------- P.ACHUTHA MENON, S/O.KALLIANIKUTTY AMMA, RESIDING AT PARAKKOOT CHETTIYARTHODIYIL, PERUMUDIYUR, AMSOM, DESOM, OTTAPPALAM TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR RESPONDENT(S): --------------- 1. PRABHAKARA MENON, S/O.PARAKKOT CHETTIYARTHODI KUNHIMALU AMMA, PERUMUDIYUR AMSOM DESOM, OTTAPPALAM TALUK, NOW RESIDING AT VADAKKEPPATTU VEEDU, MARUTHOOR P.O. PATTAMBI. 2. HARIDAS, S/O. OF DO. DO. NOW RESIDING AT BALASADANAM, NHANGATTIRI P.O. NAGALASSERY, PATTAMBI. 3. VENUGOPALA MENON, S/O. DO. OF DO. NOW RESIDING AT PROVISION MERCHANT, THURUTHALA KOPPAM, P.O.AMAYOOR, PULASSERI, PATTAMBI. 4. SEEMANTHINI, D/O. DO. OF DO. NOW RESIDING T NEDUMBRAKATTUKUNNATHU, AMAYOOR P.O. PATTAMBI. 5. SREEKRISHNAN, S/O. DO. OF DO. NOW RESIDING AT PANDARTHIL, P.O.PATTAMBI. 6. GIRIJA, D/O. OF DO. DO. NOW RESIDING AT VDAKKEPPATTU, MARUTHOOR, PATTAMBI. 7. DEVAYANI, D/O.OF DO. DO. NOW IN DO. WP(C).17029/06 8. RAMACHANDRA MENON, S/O. DO. OF DO. NOW RESIDING AT BALASADANAM, NHANGATTIRI, NAGALASSERY, PATAMBI. 9. BALAMANI, D/O. OF DO. DO NOW RESIDING AT NEDUMBRAKATTUKUNNATHU, AMAYOOR P.O. PATTAMBI. ADV. SRI.D.KRISHNA PRASAD FOR R1, 2, 4 TO 9 SRI.D.NARENDRANATH FOR R1, 2 , 4 TO 9 SMT.O.K.SANTHA FOR R1, 2, 4 TO 9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).170296/06 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF EXT.C2 PLAN FORMING PART OF THE FINAL DECREE IN I.A.NO.420 OF 1976 IN O.S.NO.2 OF 1971, SUB COURT, OTTAPALAM. EXT.P2: COPY OF THE SURVEY SKETCH PREPARED BY THE PETITIONER. EXT.P3: COPY OF THE ORDER IN E.A.NO.325 OF 2003 IN E.P.NO.74 OF 2002 IN O.S.NO.2 OF 1971, SUB COURT, OTTAPALAM. EXT.P4: COPY OF THE AFFIDAVIT AND PETITION UNDER SECTION 47 OF CPC AND THE ORDERS PASSED THEREON ON 23.3.2006. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.17029 OF 2006 () ----------------------------------- Dated this the 1st day of February, 2010 J U D G M E N T Petitioner is the 4th defendant in O.S.No.2 of 1971 on the file of the Sub Court, Ottapalam. The above suit was one for partition, in which, preliminary and final decrees were passed. Pursuant to passing of the decree, the share of the respondents/plaintiffs, which was in the possession of the Receiver was delivered over. After such delivery, the present petitioner/4th defendant moved an application under Section 151 of the CPC contending that excess land has been delivered over. That application was closed by Ext.P3 order by the execution court holding that such a challenge can be entertained only by reopening the execution proceedings. Petitioner thereupon moved an application under Section 47 of the CPC alleging that the property delivered over to the respondents/plaintiffs was in excess of the share alloted to him. The court below dismissed that application vide Ext.P4 WPC.17029/06 2 order holding that delivery had already been effected and the execution petition was closed and petition canvassing the same relief had been dismissed earlier. Propriety and correctness of Ext.P4 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 counsel on both sides. Considering the submissions made and taking note of the facts and circumstances presented, I find the application moved under Section 47 of the CPC raising a question as to execution, discharge and satisfaction of the decree is a matter to be gone into by the execution court when one of the sharers (petitioner) had canvassed a case that in effecting the delivery in favour of the respondents/plaintiffs there was allotment of excess area over and above provided under the decree. I do not want to express any opinion on the merit of the case. After examining the materials, if the court finds that the application is meritless, it can pass appropriate orders in accordance with law even without proceeding with further enquiry on the WPC.17029/06 3 matter. On the other hand, if the court finds that there is any substance in the case canvassed by the petitioner, then that application, no doubt, has to be disposed of after due enquiry in accordance with law. Subject to the above observations, the writ petition is disposed. S.S.SATHEESACHANDRAN JUDGE prp