IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 OP(C).No. 2446 of 2011(O) -------------------------------------- E.P.NO.112/2010 IN OS.NO. 370/2008 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER/JUDGEMENT DEBTOR ----------------------------------------------------- K.VIJAYAN, KALAKATTU THEKETHIL, KADAVOOR MURI, KANNAMMANGALAM VILLAGE, ALAPPUZHA DISTRICT. BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): DECREE HOLDER ------------------------------------------------------ ALEYAMMA JOSEPH, W/O.RAJU YOHANANNAN, BRABMINI KIZAKATHIL PUTHENVEETIL, KUDAVOOR MURI, KANNAMANGALAM VILLAGE, ALAPPUZHA DISTRICT-688 001. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.2446/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PLAINT IN O.S.NO.370 OF 2008 ON THE FILE OF MUNSIFF COURT AT MAVELIKKARA. P2 COPY OF THE WRITTEN STATEMENT DATED 03/03/2009 IN O.S.NO.370 OF 2008 ON THE FILE OF MUNSIFF COURT AT MAVELIKKARA. P3 COPY OF THE ADDRESS MEMO FILED BY THE PETITIONER DATED 03/03/2009 P4 COPY OF THE AMENDMENT APPLICATION VIDE I.A.NO.1282/2010. P5 COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE PETITIONER DATED 07/09/2010. P6 COPY OF THE DECREE IN O.S.NO.370/2008 ON THE FILE OF MUNSIFF COURT AT MAVELIKKARA. P7 COPY OF THE JUDGMENT IN O.S.NO.370 /2008 ON THE FILE OF MUNSIFF COURT AT MAVELIKKARA. P8 COPY OF THE NOTICE IN E.P.NO.112 OF 2010 DATED 01/06/2011. P9 COPY OF THE EXECUTION PETITION IN E.P.NO.112 OF 2010 ON THE FILE OF MUNSIFF COURT AT MAVELIKKARA. P10 COPY OF THE OBJECTION DATED 11/04/2011 IN E.P.NO.112 OF 2010 ON THE FILE OF MUNSIFF COURT AT MAVELIKKARA. P11 COPY OF THE ORDER DATED 01/07/2011 IN E.P.NO.112/2010 IN O.S.NO.370/2008 OF THE MUNSIFF COURT AT MAVELIKKARA. P12 COPY OF THE EXTRACT OF THE PASS PORT SHOWING THE RESIDENTIAL ADDRESS OF THE PETITIONER. P13 COPY OF THE RECEIPT DATED 12/3/2008. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2446 of 2011 -------------------------------------- Dated this the 28th day of July, 2011. JUDGMENT Petitioner , it is said is the judgment debtor in E.P.No.112 of 2010 in O.S.No.370 of 2008 of the court of learned Munsiff, Mavelikkara. Respondent filed the suit for a decree for eviction of petitioner from one of the shoprooms entrusted to him on rental arrangement with arrears of rent. In the written statement petitioner contended that his address given in the plaint is not correct. Thereon, respondent filed Ext.P4, application to correct address and that was allowed. But I am told that correction was not carried out. In whatever address petitioner was described in Ext.P1, plaint, parties proceeded with trial and that resulted in a verdict in favour of respondent allowing her to recover possession of the shoproom from petitioner with rent arrears. That decree was put in execution in E.P.No.112 of 2010. In the execution also petitioner raised the very same contention that his address given in the plaint, decree and execution petition is not correct. There was a further contention that notice under Section 106 of the Transfer of Property Act terminating lease was not served on petitioner. Executing court found that contentions raised by petitioner could not be considered in execution as those are pre-decree matters concluded by the decree and passed Ext.P11, order. That order is under challenge. I have heard learned counsel for petitioner. OP(C) No.2446/2011 2 2. Assuming that there is a mistake in the address of petitioner in the plaint and subsequent proceeding and that the mistake was not corrected even after Ext.P4, application was allowed, there is no dispute regarding identity of petitioner as the tenant of respondent occupying the room in question. In such circumstances, even if there is some discrepancy in the description of petitioner in the plaint and decree that does not in my view affect executability of the decree. 3. Contention regarding want of notice if any was to be raised in the trial court and if not raised, that is not a ground upon which petitioner could resist the execution petition. 4. I do not find merit in the objection raised and nor reason to interfere. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. Taken up today as requested by learned counsel in open court. OP(C) No.2446/2011 3 2. Having regard to the circumstances stated by learned counsel, petitioner is granted two months' time from this day to vacate the premises on condition that petitioner files affidavit this day itself (01.08.2011) in the executing court undertaking to vacate the premises on the expiry of two months without putting forth any claim or objection on any account whatsoever. The execution petition will stand posted to a day after two months from this day. Registrar (Judicial) is directed to communicate the gist of order to the learned Munsiff, Mavelikkara. 01.08.2011. Thomas P.Joseph, Judge. cks