IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 29533 of 2009(O) ------------------------------------------ AGAINST THE ORDER IN EP.12/2009 IN OS.15/2004 of PRL.MUNSIFF COURT, KOCHI. .................... PETITIONER(S): -------------------------- V.J.JACOB, S/O.JOSEPH, AGED 33, VALIAPARAMBIL HOUSE, KAZHUTHUMUTT, THOPPUMPADY, KOCHI-5. BY ADVS. SRI.S.SREEKUMAR, SRI.P.MARTIN JOSE, SRI.M.A.MOHAMMED SIRAJ, SRI.P.PRIJITH. RESPONDENT(S): --------------------------- 1. XAVIER, S/O.LATE JOSEPH, RESIDING AT KATTIPARAMBIL HOUSE, CC 17/1623, RAMESWARAM VILLAGE, KOCHI TALUK. 2. MATHEW, S/O.LATE JOSEPH, RESIDING AT KATTIPARAMBIL HOUSE, CC 17/1623, RAMESWARAM VILLAGE, KOCHI TALUK, REP.BY BROTHER AND PRESENT GUARDIAN XAVIER, S/O.LATE JOSEPH, RESIDING AT KATTIPARAMBIL HOUSE, CC 17/1623, RAMESWARAM VILLAGE, KOCHI TALUK. 3. GRACY JOSEY, W/O.JOSEY, KATTIPARAMBIL HOUSE, CC 17/1622, RAMESWARAM VILLAGE, KOCHI TALUK. 4. ANU K.JOSEY, S/O.JOSEY, KATTIPARAMBIL HOUSE, CC 17/1622, RAMESWARAM VILLAGE, KOCHI TALUK. 5. BIJU K.JOSEY, S/O.JOSEY, KATTIPARAMBIL HOUSE, CC 17/1622, RAMESWARAM VILLAGE, KOCHI TALUK. R1 BY ADVS. SRI.R.SUDHISH, SMT.M.MANJU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29533/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE DEED NO.178/2004 DTD. 9/01/2004 OF KOCHI SUB REGISTRY. P2: COPY OF EXPARTE DECREE DTD. 12/01/2007 IN O.S.NO.15 OF2004. P3: COPY OF EXPARTE JUDGEMENT DTD. 12/01/2007 IN O.S.NO.15/2004. P4: COPY OF E.P.NO.12 OF2009. P5: COPY OF E.A.NO.76/2009 FILED BY PETITIONER DTD. 13/03/2009. P6: COPY OF E.A.NO.275 OF 2009 FILED ON 13/10/2009. P7: COPY OF E.A.NO.276 OF 2009 DTD. 13/10/2009. P8: COPY OF PETITION FOR DIRECTION FILED BY PETITIONER. P9: COPY OF ORDER DTD. 15/10/2009. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE JUDGMENT DTD. 20/07/2004 IN O.S.180/2004 OF PRINCIPAL MUNSIFF COURT, KOCHI. R1(B): COPY OF JUDGMENT DTD.21/06/2007 IN O.S.490/2004 OF ADDL.MUNSIFF COURT, KOCHI. R1(C): COPY OF THE EXT.A6 IN O.S.15/2004 OF PRL.MUNSIFF COURT, KOCHI. /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== W.P(C) No.29533 of 2009 ==================================== Dated this the 05th day of October, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P9, order dated 15.10.2009 of the court of learned Munsiff, Kochi granting police protection to the respondents for construction of a compound wall on four boundaries of the suit property described as 29 cents. Respondent No.2-plaintiff No.2 in O.S. No.15 of 2004, said to be a mentally ill person represented by his next friend instituted the suit for fixation of boundary of the said 29 cents and for injunction to restrain the defendant from alienating the property. During pendency of the suit sole defendant died and his legal representatives were impleaded. The suit ended in an ex parte decree based on which the decree holder filed E.P. No.12 of 2009 seeking the aid of court to construct compound wall on the boundaries of suit property. At that stage petitioner intervened by Ext.P5, E.A. No.76 of 2009 dated 13.3.2009 claiming that of the 29 cents described as suit property he has acquired title and possession of 10.300 cents as per Ext.P1, assignment deed and hence that property has to be excluded from the suit property W.P(C) No.29533 of 2009 -: 2 :- while executing the decree. Learned counsel states that the said application was allowed. Prayer made in Ext.P5, E.A. No.76 of 2009 was to exclude F schedule item in the plan while executing the decree. On the Amin submitting report, petitioner realised that mention of F schedule in Ext.P5, application was a mistake and there is no such property. Thereon he filed Ext.P6 to P8, applications to correct the mistake in Ext.P5 and instead of F schedule to incorporate the property in respect of which relief is sought as 10.300 cents covered by Ext.P1, assignment deed, to keep execution proceeding in abeyance and to direct the Amin to identify the said 10.300 cents and exclude it from execution. According to the learned counsel while Exts.P6 to 8 applications were pending learned Munsiff has passed Ext.9, order. 2. I have heard learned counsel for respondent No.1 as well. Learned counsel contends that Ext.P1, assignment deed is invalid since it was got executed from an insane person and concerning that, respondent No.2 has filed O.S. No.179 of 2004 through his next friend to set aside Ext.P1 which is pending. In the meantime petitioner filed O.S.No.500 of 2010 against respondent Nos.1 and 2 and others for a decree for prohibitory injunction against trespassing into the said 10.300 cents. W.P(C) No.29533 of 2009 -: 3 :- Learned counsel for respondent No.1 states that petitioner is not even aware of identity of the property which indicates that he has not acquired title or possession of 10.300 cents referred into in Ext.P1. 3. It is not necessary for me to go into the contentious issue whether Ext.P1, assignment deed is valid and if so petitioner has acquired any title and possession of 10.300 cents referred to therein. Grievance in this proceeding is that it is while Exts.P6 to P8, applications were pending that executing court passed Ext.P9, order. It is seen from Ex.P9, order that there is reference in paragraph 4 to Ext.P5 application being allowed. In the light of that, before passing Ext.P9, order executing court was bound to dispose of Exts.P6 to P8, applications. Hence Ext.P9, order cannot be sustained. 4. Learned counsel for respondent No.1 has submitted that he may be permitted to put up the boundary and he is prepared to remove the boundary in case O.S. No.179 of 2004 and O.S. No.500 of 2010 are decided in favour of petitioner. Learned counsel for petitioner would suggest that appropriate course is to identify the property covered by Ext.P1 and permit respondent Nos.1 and 2 to put up boundary for the property W.P(C) No.29533 of 2009 -: 4 :- excluding the said 10.300 cents. I leave that matter to be decided by the executing at the appropriate stage. Resultantly, this Writ Petition is allowed and Ext.P9, order is set aside. Executing court is directed to dispose of Exts.P6 to P8, applications and thereafter pass appropriate orders as circumstances warranted. It is open to the parties to place before the executing court suggestions which they have urged before me and if raised it is open to the executing court to consider the same and pass appropriate orders after hearing parties on either side. Executing court shall expedite the proceedings. THOMAS P. JOSEPH, JUDGE. vsv