IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9885 of 2009(O)
1. SIVARAMAPILLAI, CHARUVILA VEEDU,
... Petitioner
2. PRABHAKARAN, CHARUVILAPUTHENVEETIL
3. SUDHAKARAN, CHARUVILAPUTHENVEETIL
4. SADASIVAN, PARAVILAVEEDU,
5. SUHRA, PUTHUVALPUTHEN VEEDU,
6. BHAGEERATHIYAMMA, CHANDRA VILASOM,
7. CHELLAPPAN PERUMAL,
8. SHANMUGHAM, PULIMOOTIL,
Vs
1. M/S.HARISON'S MALAYALAM LTD., KOCHI,
... Respondent
For Petitioner :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :26/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C) NO. 9885 OF 2009 O
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Dated this the 26th March, 2009
JUDGMENT
The fourth judgment debtor and the legal representatives and
assignees of the other judgment debtors in O.S.No.65 of 1974, on the file
of the Court of the Subordinate Judge, Kottarakkara, are the writ
petitioners. The suit was filed for declaration of title and recovery of
possession. Decree was passed on 26.10.1974. Execution was levied by
the decree holder. Amin was deputed to effect delivery in terms of the
decree. The Taluk Surveyor was also deputed to assist the Amin. Amin
filed Ext.P3 report stating that the Surveyor could not locate the decree
schedule property. The Surveyor filed Ext.P3 report stating that on
inspection of the properties, it was found that the property in Sy.No.391/1,
which is the decree schedule property, is found to be the same as in
Sy.No.399/1 as per possession. He also stated that the property in
Sy.No.399/1 is not included in the decree for recovery of possession.
The Surveyor also submitted that the total extent of the property is more
than sixteen acres and he could not locate the survey numbers of the
properties. The Surveyor prayed for further time to identify the property
and to comply with the order for delivery. The executing court passed
Ext.P4 order dated 29.11.2008, which reads as follows:
W.P.(C) NO.9885 OF 2009
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“Delivery not effected. Report filed. Seeking time to
execute delivery on or before 19-12-08. Issue direction to
Surveyor. For report to 20-12-2008.”
2. In the Writ Petition, it is stated that after Ext.P4 order the case
was posted on 13.1.2009, 13.3.2009 and 27.3.2009. The petitioners
sought adjournment of the case stating that they wanted to challenge
Ext.P4 order. The petitioners’ apprehend that delivery will take place
without identifying the property. Ext.P4 order is sought to be set aside in
the Writ Petition. Another relief sought for is to direct the court below to
properly identify the decree schedule property before effecting delivery.
3. The challenge against Ext.P4 order is unsustainable. There is
no case for the petitioners that the decree is not executable. On the
report filed by the Amin and the Surveyor, the court below granted time.
The judgment debtor is not entitled to challenge that order. The relief
sought for by the petitioners for a direction to the executing court to
identify the property is also unsustainable at this stage. It is for the
executing court to decide upon the matters regarding delivery of the
property in execution. If any property other than the decree schedule
property is delivered and if any person is aggrieved by such a
proceeding, he is not without any remedy. He can invoke his remedy
under Section 47 of the Code of Civil Procedure before the executing
W.P.(C) NO.9885 OF 2009
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court. The matters which are to be looked into by the executing court
cannot be raised in a Writ Petition even before the time for raising such
objections has arisen.
The Writ Petition is without any merit and it is, accordingly
dismissed.
(K.T.SANKARAN)
Judge
ahz/