IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33922 of 2007(L)
1. PREMANANDAN,S/O.HARIDASAN,
... Petitioner
Vs
1. M.PRABHAKARAN,MARIYATHU HOUSE,
... Respondent
For Petitioner :SRI.R.BINDU (SASTHAMANGALAM)
For Respondent :SMT.PRABHA R.MENON
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :22/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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W.P.C No.33922 OF 2007
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Dated this the 22nd day of February 2010
JUDGMENT
Petitioner is a third party in the execution proceedings
arising from a decree passed in O.S No.140 of 1975 on the file of
the Sub Court, Kozhikode. Respondent is the Amin deputed by
the court for delivery of the property with police aid, in execution
of the decree. Petitioner, a third party, claimed that he had
independent occupation over a portion of the decree schedule
property with a bunk shop at that site. Though he was not bound
by the decree, the respondent Amin demolished his bunk shop
and filed a false report before the court, was his case. Imputing
grave allegations against the respondent Amin, the petitioner
applied for his prosecution in accordance with law. Two other
petitions were also filed by the petitioner, the first one, an
application under Order 21 Rule 99 of the Code of Civil Procedure
to restore his possession and the other to prosecute the decree
holder and to claim damages. The application moved by the
petitioner against the Amin(respondent) after enquiry was
dismissed by the learned Munsiff vide Ext.P3 order. The other two
applications of the petitioner are still pending consideration
before the court below. Propriety and correctness of Ext.P3 order
W.P.C No.33922 OF 2007 Page numbers
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. The limited
prayer canvassed by the learned counsel for the petitioner was for
setting aside the order and remitting the petition moved by him
for taking action against the respondent for consideration with the
other two pending petitions which are still awaiting consideration.
Prejudice is likely to be caused to the petitioner in considering the
other applications on its merits in view of Ext.P3 adverse order
passed against him, is the submission of the counsel. In the
alternative, it is submitted, if for any reason the impugned order
is found not liable to be interfered with in exercise of the extra
ordinary jurisdiction of this court the court below may be directed
to dispose the other two applications untrammelled by any of the
observations made in the order. The learned counsel for the
respondent resisted the relief canvassed for setting aside the
order and remitting it for fresh consideration with the other two
petitions contending that the Amin had only discharged his duties
lawfully in accordance with the orders passed by the court.
Remission of the case setting aside the order in such
circumstances would cause prejudice to the respondent Amin,
W.P.C No.33922 OF 2007 Page numbers
that too for having preformed his duties as a public servant,
submits the counsel.
3. Taking note of the submissions made by the counsel on
both sides, I have perused Ext.P3 order impugned in the writ
petition. After going through the order, I find, the learned Munsiff
has meticulously considered the imputations made against the
Amin by the petitioner and had reached the conclusion that there
is no basis for the imputations and allegations raised against him.
I do not find any impropriety or illegality in Ext.P3 order
warranting interference by exercise of the extra ordinary
jurisdiction vested with this court. However, I make it clear that
none of the findings made in the order shall have any effect or
bearing in disposing of the other two applications filed by the
petitioner which await enquiry and consideration. Those two
applications shall be disposed of untrammelled by any of the
observations made in Ext.P3 order in accordance with law.
Subject to the observations made above, the writ petition is
closed.
Sd/-
S.S.SATHEESACHANDRAN
//TRUE COPY// JUDGE
vdv P.A TO JUDGE