IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 WP(C).No. 22606 of 2010(A) ------------------------- PETITIONER : -------------------- DAMODARAN, S/O.KOCHU KANJAN NADAR, VINU COTTAGE, PATTAVILA, PUNLAL MURI, PERUMKULAM VILLAGE, NEDUMANGAD. BY ADV. SMT.M.HEMALATHA RESPONDENT(S): ------------------------- 1. THE SUB INSPECTOR OF POLCIE, ARYANADU POLICE STATION, ARYANADU, NEDUMANGADU-695545. 2. VIJAYARAJAN, S/O.SIMSHON, KUNNATHU MEKKUMKARA VEED, PUNALAL MURI, PERMKULAM VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM-695 545. R1 BY GOVT. PLEADER SRI. T.K. VIPINDAS R2 BY ADV. SRI. BIJU C. ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 22606 of 2010(A) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE DECREE IN O.S. NO. 130/99 BEFORE THE ADDITIONAL MUNSIFF'S COURT, NEDUMANGAD DATED 14.12.99. EXT.P2 : COPY OF THE 'B' DIARY IN E.P.NO.127/2000. EXT.P3 : COPY OF THE JUDGMENT IN W.P.(C) NO. 32941/05 BEFORE THIS HONOURABLE COURT, DATED 3.10.06. EXT.P4 : COPY OF THE JUDGMENT IN W.P.(C) NO. 32941/05 BEFORE THIS HONOURABLE COURT DATED 27.3.09. EXT.P5 : COPY OF THE DELIVERY NOTE. EXT.P6 : COPY OF THE SALE CERTIFICATE. EXT.P7 : COPY OF THE REPRESENTATION. EXT.P8 : COPY OF THE ACKNOWLEDGEMENT CARD. RESPONDENT'S EXHIBITS: EXT.R2(a) : COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VELLANAD GRAMA PANCHAYAT. EXT.R2(b) : COPY OF THE I.A.NO. 295/2010 IN OS NO. 130/1999 ON THE FILE OF THE HON'BLE MUNSIFFS COURT, NEDUMANGAD. EXT.R2(c) : COPY OF THE IA NO. 294/2010 IN OS NO. 130/1999 ON THE FILE OF THE HON'BLE MUNSIFF'S COURT, NEDUMANGAD. //TRUE COPY// P.S. TO JUDGE Mn R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(C) No. 22606 of 2010-A ------------------------------------------------- Dated this the 5th day of January, 2011 JUDGMENT Basant,J. The petitioner has come to this Court with this petition under Art.226 of the Constitution for issue of directions to respondent No.1 to afford protection to him for the enjoyment of a property delivered to him in court sale. 2. Fundamental facts are not disputed. The petitioner as plaintiff filed a claim for money against the 2nd respondent. The suit was decreed. The steps for execution were taken. A property belonging to the 2nd respondent was brought to sale in execution. The sale was effected. Sale certificate was issued. Delivery was effected through court. It is the grievance of the petitioner that the petitioner is not being permitted to enjoy the property delivered to him. For this, he seeks police protection. W.P.(C) No. 22606 of 2010 -: 2 :- 3. The 2nd respondent has entered appearance through counsel. The learned counsel for the 2nd respondent submits that the proceedings before the civil court is vitiated by fraud. A petition has been filed before the court below to set aside the decree and all further proceedings. The same is numbered as I.A. 3224/10. The said petition stood posted to 30/10/10. The petitioner has not so far entered appearance. Hence the civil court was disabled from considering that petition. The learned counsel for the 2nd respondent submits that the petitioner is trying to run away with an order of police protection and avoid the proceedings before the court. The petitioner may be directed to appear before the civil court below and raise his contentions against the petition filed as I.A.No.3224/10. 4. The learned counsel for the petitioner submits that the petitioner has not so far received notice in the said I.A. A report of the learned Munsiff was called for and the report submitted through the District Court, Trivandorum, received in this Court on 6/11/10, shows that the matter stands posted for return of notice to the petitioner herein. 5. We do not want to express any opinion on the validity of the decree or the proceedings in execution taken before the court below. We are firmly of the opinion that the petitioner W.P.(C) No. 22606 of 2010 -: 3 :- must appear before the court below and raise his contentions against the prayer in I.A.No.3224/10. Needless to say either party shall be at liberty to seek interim directions from the court below to secure their interests. We are not, at any rate, satisfied that any directions under Art.226 of the Constitution can, need or deserve to be issued at this stage. 6. This writ petition is accordingly dismissed with the above observations. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge