IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17649 of 2008(A)
1. DASAPPAN, S/O.KUNJUKUNJU,
... Petitioner
Vs
1. K.K.SURENDRAN,S/O.KESAVAN ACHARY,
... Respondent
2. MADHAVAN, S/O. KUNJUKUNJU,
3. TAHSILDAR
For Petitioner :SRI.M.P.MADHAVANKUTTY
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.17649 of 2008
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Dated this the 13th June, 2008.
J U D G M E N T
First respondent obtained a decree for recovery of
possession as against the second respondent in O.S.No.43 of 2002, on
the file of Munsiff Court, Changanacherry. E.P.No.17/2007 was filed
before Munsiff Court, Changanacherry, for execution of the decree. In
the execution petition, petitioner filed Ext.P2 petition under Rule 99 of
Order XXI of Code of Civil Procedure contending that first respondent
though obtained the property from 2nd respondent, 2nd respondent
obtained title of the property by Assignment Deed obtained from the
father of the petitioner, and the father of the petitioner obtained right
over the property as per the Patta issued by Kerala State Schedule
Caste Development Department, and in that Patta, there is a specific
provision prohibiting any alienation and it only provides for
inheritance, and therefore, 2nd respondent is not entitled to claim any
right over the property, and through him, first respondent is also not
entitled to claim the property, and, therefore, the decree cannot be
executed.
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2. This petition is filed under Article 227 of the
Constitution of India for a direction to the Munsiff to keep all further
proceedings in the execution in abeyance till Ext.P3 petition filed by
the petitioner is disposed of and petitioner obtains a copy of the Patta.
3. The argument of the learned counsel is that question
to be decided in the petition pending before the Executing court is
whether father of the petitioner is entitled to assign the property and
it depends on the provision of the Patta and petitioner could produce
the Patta only on getting the same and he could get it only after the
disposal of Ext.P3 petition, and, therefore, learned Munsiff may be
directed to keep the execution proceedings in abeyance.
Ext.P3 petition is seen filed on 9.3.2008, even though a
petition under Rule 99 of Order XXI of Code of Civil Procedure was filed
before the court as early as 9.11.2007. Ext.P3 shows that petitioner is
to ascertain whether there is any such prohibition against alienation
only on getting the patta. His brother, the judgment debtor, did not
raise any such contention in the suit. In such circumstances, I do not
find, in the interest of justice, to grant any direction to keep the
W.P.(C) No.17649/2008
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execution petition in abeyance, as sought for by the petitioner.
Petition is dismissed.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.