IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 97 of 2010()
1. LALAITHA, D/O.DAKSHAYANI,"DARSANA",
... Petitioner
2. RAHUL, S/O.SUDARSANAN,"DARSANA",
Vs
1. GOPINATHAN NAIR,S/O.VASUDEVAN NAIR,
... Respondent
2. VILASINA AMMA, D/O.KAMALAMMA PILLAI,
3. RAJEEV.S.L, 255 A EDGWARE ROAD,
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.J.S.AJITHKUMAR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :15/07/2010
O R D E R
HARUN-UL-RASHID,J.
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C.R.P.NO.97 OF 2010
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DATED THIS THE 15TH DAY OF JULY, 2010
O R D E R
Counter petitioners 2 and 3 in E.P.No.90/07 in
O.S.No.6/95 on the file of the Sub Court, Neyyattinkara are the
revision petitioners. They are defendants 2 and 3 in the suit. The
civil revision petition is filed against the final order dated 9th
February, 2010 in the execution petition. The execution court
held that the objections raised by the revision petitioners against
the execution of the decree are unsustainable and devoid of any
merit.
2. Petitioners in E.P. are the decree holders. The
suit was filed for declaration of title and recovery of possession.
The trial court by judgment and decree dated 14/8/2002
decleared plaintiffs’ title over the plaint A schedule properties
and ordered recovery of plaint B schedule building from the
defendants. The defendants are also restrained by a permanent
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prohibitory injunction from interfering with the plaintiffs’ right
over the plaint schedule properties and from committing any act
of waste and mischief. The appeal preferred by the defendants as
A.S.No.515/2002 was dismissed by this Court as per judgment
dated 30/4/2009.
2. Pending the E.P., third party filed
E.A.No.212/08 claiming title and possession over the plaint
schedule properties. The execution court dismissed the said E.A.
by order dated 8/2/2010 finding that the claim petitioner has no
manner of right, title or possession over the plaint schedule
properties. The claim petitioner preferred Ex.F.A.No.19/2010.
This Court heard the appeal and dismissed the same today
confirming the order passed by the execution court by separate
judgment.
3. The revision petitioners objected the execution
petition stating that the decree passed in O.S.No.6/95 is not
executable for the reason that the decree was passed by the civil
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court without jurisdiction. According to the judgment
debtors/defendants, the plaintiffs ought to have filed rent control
petition before the rent control court for eviction and that only
the rent control court has got jurisdiction to pass an order of
eviction.
4. Though the defendants/judgment debtors
contested the suit seriously, they have no case that the civil court
has no jurisdiction to entertain the suit and to render a judgment
in the suit. They have not raised any objection to the effect that
only the rent control court has jurisdiction to try the matter. In
the appeal preferred by the very same parties before this Court as
A.S.No.515/2002, no such contention was raised. The execution
court held that the present petition is without any merit and the
attempt of the judgment debtors is only to prolong the case and
prevent the decree holders from enjoying the fruits of the decree
which they obtained as early as on 14/8/2002.
5. I have referred to the decree and judgment
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passed by the civil court and the Appellate Court. The revision
petitioners have not contended before the said courts that they are
tenants under the plaintiffs, nor they have a case that they are
attorning rent to the plaintiffs and therefore the civil court has no
jurisdiction to try and dispose of the suit. So long as such
contentions are not raised and the civil court has not entered a
finding that the revision petitioners are tenants under the
plaintiffs, it appears that the contention has no force. I do not
find any merit in the objections raised.
In the result, the CRP fails and accordingly
dismissed.
HARUN-UL-RASHID,
JUDGE.
kcv