High Court Kerala High Court

Sivaramapillai vs M/S.Harison’S Malayalam Ltd. on 26 March, 2009

Kerala High Court
Sivaramapillai vs M/S.Harison’S Malayalam Ltd. on 26 March, 2009
       

  

  

 
 
  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.
                 ------------------------------------------------------
                     W.P.(C) NO. 9885 OF 2009 O
                 ------------------------------------------------------
                   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

:: 2 ::

“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

:: 3 ::

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/