IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).NO. 28017 OF 2010(O) -------------------------- {IN EP 129/2008 IN OS.323/1988 OF PRINCIPALSUB COURT, KOTTAYAM} .................... PETITIONER(S): --------------- GEORGE ISAAC, S/O.LATE P.V.ISAAC, PALATHINKAL HOUSE, T.B.ROAD, KOTTAYAM. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): --------------- 1. MRS.MARY ROY, D/O.LATE P.V.ISSAC, W/O.RAJEB ROY, RESIDING PALLIKUDAM HIGH SCHOOL, VADAVATHOOR P.O.,KOTTAYAM. 2. MRS.M.A.JOSEPH, D/O.LATE P.V.ISSAC, W/O.M.A.JOSEPH, RESIDING AT GUIT CHRIST, AVENUE OFF HARRINGTON ROAD, MADRAS- 600031, TAMIL NADU. 3. MRS.ELAINE SINGLETON, W/O.LATE JOHN ISSAC, 8 PEACOCK, A.V.STOBICOKE ONTARIO, MSC 212, CANADA PRESENTLY RESIDING AT PALATHINKAL HOUSE, T.B.ROAD, KOTTAYAM. R1 BY ADV. SMT.LEKHA SURESH SMT.S.MEERA FOR R1 & SRI.ASHOK SURESH R2 BY ADV. SRI.RAJEEV V.KURUP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- W.P.(C).No.28017 of 2010 --------------------------------------- Dated this the 27th day of September, 2010 JUDGMENT Petitioner is the 3rd judgment debtor in O.S.No.323/88 on the file of the Principal Sub Court, Kottayam. 2. The decree executed is passed in a suit for partition, which, it is submitted, is an off-shoot of Mrs.Mary Roy v. State of Kerala & ors {AIR 1986 SC 1011}. Pursuant to the final decree passed in the suit, which has become final, in the execution of such decree, the present petitioner/3rd judgment debtor resisted the executability of the decree on various grounds, which have been repelled and negatived by the court. It is submitted that the execution petition stands posted for delivery on 29th of this month. The decree, among others, had imposed and cast an obligation on the 3rd judgment debtor to deposit a sum of Rs.26.15 lakhs as the amount due to the plaintiff and defendants 2 to 5. Such amount was collected W.P.(C).No.28017 of 2010 :: 2 :: by the 3rd judgment debtor as security from the tenants and so much so, the refund of such amount in compliance of the decree would not relieve him from personal liability, it is stated, was one among the contentions raised by the petitioner/3rd judgment debtor to resist the execution of the decree. 3. It is further submitted by the counsel for the 3rd judgment debtor/petitioner that he had moved a review petition for review of the final decree, in which, according to the counsel, there is an error apparent on the face of the order itself. The 3rd judgment debtor has also questioned the authenticity of the power of attorney produced in respect of the 5th defendant and the entitlement of that power of attorney holder to get delivery of the property and also the share of the amount which is directed to be deposited due to the share of the 5th defendant. 4. Before the execution court, the 3rd judgment debtor had moved an application for W.P.(C).No.28017 of 2010 :: 3 :: permitting him to deposit the amount of Rs.26.15 lakhs in a Nationalised Bank in his name and to produce the fixed deposit receipt, requesting for release of such amount to the sharers as covered by the fixed deposit, only after considering and disposing of the objections raised by him. 5. Without considering any of the above aspects, the execution court has ordered for delivery of the properties allotted to the sharers, and has passed a separate order that, on deposit of the amount, the share due to the 5th defendant will be considered after determining the challenge raised against the power of attorney produced on behalf of the 5th defendant. Propriety and correctness of the two orders passed by the execution court, Exts.P4 and P5, ordering delivery of the property, subject to the direction in respect of the deposit and release of the amount, covered by the decree, is challenged in the writ petition invoking the supervisory jurisdiction vested W.P.(C).No.28017 of 2010 :: 4 :: with this court under Article 227 of the Constitution of India. 6. At the time of hearing, it has been brought to my notice that the review petition filed by the petitioner against the final decree passed in the suit is still to be entertained, as such petition was filed with a petition to condone the delay of more than 3 years. The fact that a review petition was filed with a petition to condone the delay in entertaining such review petition, by no stretch of imagination, can be set up as a ground to stall the execution of a decree. The decree, once passed by the court, is not suspended even by presentation of an appeal, nor is its effect interrupted for the reason that a further challenge is taken. The petitioner/3rd judgment debtor, needless to point out, is bound to comply with the decree, unless the operation of such decree is suspended or varied vide orders of the court, which passed the decree or by any superior forum. Correctness of that decree, whatever be the merit of the W.P.(C).No.28017 of 2010 :: 5 :: plea canvassed by him, except to the extent the decree is a nullity or as having been passed without jurisdiction, can never be entertained by the execution court. Such being the position of the law, there is absolutely no merit in the application by the petitioner/3rd judgment debtor setting up one challenge or the other, stalling the execution of the decree and thus deny the decree holders the fruits of the decree. There is no merit in the writ petition and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.