IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27306 of 2010(O)
1. U.UDAYABHANU,
... Petitioner
Vs
1. SAVITHRI, W/O.RAMAKRISHNAN,
... Respondent
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/09/2010
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
W.P.(C) No.27306 of 2010
--------------------------------------
Dated this the 3rd day of September, 2010.
JUDGMENT
One of the judgment debtors in E.P.No.47 of 2006 in O.S.No.44 of 1973
of the court of learned Sub Judge, Tirur is the petitioner before me aggrieved by
Ext.P3, order on E.A.No.494 of 2010. Vide that E.A., petitioner wanted the
executing court to stay further proceedings in execution until the question of title
raised by petitioner in O.S.No.196 of 2010 of the same court is finally settled.
Executing court after referring to the background of the case and relevant
circumstances has refused that request as per Ext.P3, order. Learned counsel
contends that property sought to be delivered over in execution of the decree is
not the same as scheduled in the decree and that it takes in the property over
which petitioner has absolute right and possession which is sought to be
established in O.S.No.196 of 2010.
2. The suit was for partition initiated in the year 1973 and completing
various steps and over coming various hurdles it has reached the stage of
execution of the final decree. There were several rounds of Writ Petitions and
other proceedings arising from the decisions in the case. The final decree was
passed on 07.10.2003. Respondent was allotted plots marked M1 to M4 (both
inclusive) in Ext.C5, plan which has been approved in final decree. Thereafter
petitioner and his mother filed E.A.No.327 and 328 of 2006 claiming that an
WP(C) No.27306/2010
2
item of property over which petitioner claims right is not included in the final
decree. Those applications were allowed by the executing court which
respondent challenged in W.P.(C) No.33447 of 2007 before this Court. As per
judgment dated 28.05.2008 Writ Petition was allowed and the executing court
was directed to deliver plots marked M1 to M4 in Ext.C5, plan after identification
of the property as shown in the plan. Thereafter there was another Writ Petition
(W.P.(C) No.34844 of 2009) filed by respondent which this Court disposed of on
04.01.2010 directing the executing court to complete execution as ordered in the
judgment dated 28.05.2008 (referred to supra) before closing of court for
midsummer vacation. In the meantime petitioner filed W.P.(C) No.23007 of
2006. That Writ Petition was disposed of by judgment dated 25.10.2006
observing that since petitioner’s father (defendant No.30) was not allotted any
share in the preliminary decree, petitioner cannot challenge the final decree
consequent to the death of defendant No.30 on the grounds set forth in that Writ
Petition. Executing court deputed the Amin to deliver the property. He reported
some change in the amsom and desom of the properties described in the final
decree schedule. Thereon executing court called for a report from the Tahsildar
concerned who reported that the change was consequent to the re-organisation
of Taluks. Executing court accordingly passed an order allowing respondent to
amend the schedule of property which petitioner challenged in W.P.(C)
No.5068 of 2010 before this Court . That Writ Petition was disposed of vide
judgment dated 30.06.2010 accepting the view of executing court based on
report of the Tahsildar that there was no change in the identity of property but
WP(C) No.27306/2010
3
only that the amsom and desom changed on account of re-organisation of
Taluks after final decree was passed. It is thereafter that petitioner filed
E.A.No.494 of 2010 seeking stay of further proceedings in execution claiming
that the property which belonged to him is sought to be delivered over. That
contention cannot stand in view of the decision in W.P.(C) No.33447 of 2007
which specifically directed executing court to deliver plots marked M1 to M4 in
Ext.C5, plan. Petitioner cannot lay hands on the said items. In the
circumstances, executing court was justified in refusing to stay the execution
proceedings. I do no find any infirmity in the order requiring interference.
Writ Petition is dismissed.
THOMAS P.JOSEPH,
Judge.
cks