High Court Kerala High Court

Sreelekha S.Nair vs C.K.Kurian on 17 March, 2010

Kerala High Court
Sreelekha S.Nair vs C.K.Kurian on 17 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 37057 of 2003(J)


1. SREELEKHA S.NAIR,
                      ...  Petitioner

                        Vs



1. C.K.KURIAN,
                       ...       Respondent

2. M.LALITHA DEVI @ LALITHAKUMARI,

3. L.CHITHRA OF -DO-  -DO-.

4. L.SUMITHRA OF  -DO- -DO-.

                For Petitioner  :SRI.B.KRISHNA MANI

                For Respondent  :SRI.D.KISHORE

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :17/03/2010

 O R D E R
                 S.S.SATHEESACHANDRAN, J.
                    -------------------------------
                W.P.(C).NO.37057 OF 2003 ()
                  -----------------------------------
            Dated this the 17th day of March, 2010

                         J U D G M E N T

Petitioner is one among the legal heirs of the defendant in

O.S.No.1226 of 1982 on the file of the Ist Additional Munsiff

Court, Thiruvananthapuram. In the above suit, the decree was

passed in favour of the respondents declaring their title over B

schedule pathway and allowing recovery of portions of that

pathway, which had been reduced into possession by the

defendant. After passing of the decree, the defendant passed

away and his legal heirs were impleaded as additional judgment

debtors in the execution proceedings. Revision petitioner is

stated to be the 1st additional judgment debtor in the execution

proceedings. The decree holders/respondents applied for

appointment of an Advocate Commissioner and also the Surveyor

to assist the Amin to effect delivery of the B schedule pathway as

directed in the decree. The additional judgment debtors moved

an application for review of that order canvassing a case that

WPC.37057/03 2

they were not given notice of the appointment of commission in

the petition so moved. They also sought for identification and

demarcation of B schedule pathway by a Commission. The

learned Munsiff dismissed that petition vide Ext.P3 order holding

that on the trial side the B schedule pathway had been identified

and the report and plan prepared by the Advocate Commissioner

had been acted upon by the court in granting a decree in favour

of the plaintiffs. Propriety and correctness of Ext.P3 order 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 learned counsel

for the respondents submits that delivery had been effected on

28.11.2003 and the present petition was filed by the

2nd judgment debtor canvassing for appointment of a commission

after such delivery. It is further submitted that in the execution

proceedings since personal service against them was found

impracticable, on the orders of the court, substituted service was

effected and, still, they remained absent. The execution

WPC.37057/03 3

proceedings proceeded treating them as ex parte, and, then,

according to the counsel, they moved an application, which

being allowed, they participated in the proceedings. After

perusing Ext.P3 order with reference to Ext.P2 application

moved by the additional judgment debtors, I find the relief

canvassed by them for identification of B schedule pathway when

it had already been identified on the trial side and acted upon by

the court deserve no merit at all. It also appears that the case

canvassed by the additional judgment debtors that they had no

notice of the execution proceedings is hardly susceptible when it

is affirmed that delivery had taken effect through court before

moving of the Ext.P2 application. There is no merit in the

challenges canvassed against Ext.P3 order. Writ petition is

dismissed.

S.S.SATHEESACHANDRAN
JUDGE

prp