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.
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W.P.(C).NO.37057 OF 2003 ()
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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