SREEDHARAN vs NANJAPPAN - 2022 Supreme(Online)(KER) 54080

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2022 Supreme(Online)(KER) 54080

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943 OP(C) NO. 1226 OF 2020 ORDER DATED 13.11.2019 PASSED IN E.P NO.95/2014IN FDIA 455/2006 IN O.S NO.616/1997 ON THE FILE OF PRINCIPAL MUNSIFF'S COURT, PALAKKAD PETITIONERS/JDS NO.5,2&9/RESPONDENTS NO.6,2 & SUPPLE RESPONDENT NO.10/DEFENDANTS NO.6,2 AND THE LRSOF DEIFFENDENT NO.3
1 SREEDHARAN, AGED 56 YEARS S/O. NANI AMMA, VELLAMKUNNATHU HOUSE, PERADIKUNNU, NAGARIPURAM POST, PALAKKAD DISTRICT 678 642.
2 KALLYANI AMMA, AGED 70 YEARS W/O. LATE SIVASANKARAN, VELLAMKUNNATHU HOUSE, PERADIKUNNU, NAGARIPURAM POST, PALAKKAD DISTRICT 678 642.
3 PRABHAKARAN, AGED 76 YEARS KOTTAPPADI, KONGAD POST, PALAKKAD TALUK 678 631.
BY ADVS.
SAJAN VARGHEESE K.
SRI.LIJU. M.P RESPONDENTS/DH, JDS 1, 6 TO 8 & LRS OF JDS 3 & 4/PETITIONER, RESPONDENTS NO.1 & 7 TO 9 & LRS OF RESPONDENTS NO.4 AND 5/PLAINTIFF, DEFENDANTS NO.1 & 7 TO 9 AND LRS OF DEFENDANTS NO.4 &
5
1 NANJAPPAN AGED 79 YEARS S/O. LATE KUNJUKUTTAN, PERADIKUNNU NAGARIPURAM POST, PALAKKAD DISTRICT 678 642.
2 JANAKI AMMA, AGED 79 YEARS D/O. VELUTHODATHU NANI AMMA.
PERADIKUNNU NAGARIPURAM POST, PALAKKAD DISTRICT 678 642.
3 VIJAYAN, AGED 58, S/O. RAMAN, SARI NIVAS, CHUNANGAD POST, OTTAPALAM TALUK, PIN-679511.
4 GEETHA JANARDHANAN, AGED 56, D/O. RAMAN, SARI NIVAS, CHUNANGAD POST, OTTAPALAM TALUK, PIN-679511.
5 GIRIJA GOPINATHAN, AGED 53, D/O. RAMAN, SARI NIVAS, CHUNANGAD POST, OTTAPALAM TALUK, PIN-679511.
6 UNNIKRISHNAN, AGED 43, S/O. BHARGAVI AMMA, HOUSE NO. PWSB 28/9, GANDHIMA NAGAR, POLICE QUARTERS, PEELAMEDU, COIMBATORE DISTRICT, PIN-641001.
7 RAMESAN, AGED 41, S/O. BHARGAVI AMMA, HOUSE NO. PWSB 28/9, GANDHIMA NAGAR, POLICE QUARTERS, PEELAMEDU, COIMBATORE DISTRICT, PIN-641001.
8 JAGADEESAN, AGED 39, S/O. BHARGAVI AMMA, HOUSE NO. PWSB 28/9, GANDHIMA NAGAR, POLICE QUARTERS, PEELAMEDU, COIMBATORE DISTRICT, PIN-641001.
9 VIJAYAKUMARI, AGED 61, W/O. LATE BHASKARAN, VELLAMKUNNATHU HOUSE, PERADIKUNNU, NAGARIPURAM POST, PALAKKAD DISTRICT-
678642.
10 THULASIDASAN, AGED 41, S/O. LATE BHASKARAN, VELLAMKUNNATHU HOUSE, PERADIKUNNU, NAGARIPURAM POST, PALAKKAD DISTRICT-
678642.
11 RAMANANDAN AGED 39 YEARS AGED 39, S/O. LATE BHASKARAN, VELLAMKUNNATHU HOUSE, PERADIKUNNU, NAGARIPURAM POST, PALAKKAD DISTRICT-
678642.
BY ADV SRI.RAJESH SIVARAMANKUTTY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Advocates:
['SAJAN VARGHEESE K', '', 'SRI LIJU M P', 'SRI RAJESH SIVARAMANKUTTY']

JUDGMENT

R1 appeared through counsel. Notice to R3 to R5 returned unserved. Additional respondent 12 and 15 not returned so far. In fact, their presence is not necessary to address the grievance in this petition, since the dispute is in between the original petitioners who are judgment debtors 5, 2 and 9 in E.P. No. 95/2014 in O.S No. 616/1997 where the first respondent is the decree holder.

2. Heard the learned counsel for the petitioners as well as the learned counsel for the first respondent.

3. It is submitted by the learned counsel for the petitioners that, as per order impugned produced as Ext.P4 herein, the learned Munsiff after dismissing E.A 172/2018 filed by the petitioners straight away ordered delivery and the second appeal challenging dismissal of E.A 172/2018 is pending before this court. The learned counsel read out the objection filed by the petitioners herein before the execution court on 25.09.2014. On perusal of the said objection, it could be noticed that those are contentions ought to be taken before the trial court and not before the execution court. In my view, those contentions cannot be addressed at the time of execution of a decree. I am not making any comment with regard to the pendency of second appeal pending before this court.

4. Whereas the learned counsel for the Ist respondent/

decree holder submitted that a suit filed in the year 1997 has been dragged by various proceedings and in view of operation of stay in this original petition, the delivery of the property could not be effected. He submitted further that though no valid contentions available to the petitioners to obstruct delivery, because of the pendency of this matter, delivery has been stalled.

5. I have perused the order at par with the contention raised by both sides.

6. Regarding the grievance adverted to by the judgment debtors in E.A 172/2018 is concerned, the same will be decided by this court in the appeal pending. Going by the impugned order, after dismissal of E.A 172/2018,the execution court ordered delivery Though the learned counsel for the petitioners attempted to attribute fault on the part of the execution and, the said order is perfectly within the power of the execution court. Thus none of the contentions raised herein cannot be sustained to stall the delivery. Therefore, this original petition lacks merit and the same is liable to be dismissed.

In the result original petition is dismissed on the finding that no perversity or arbitrariness or patent illegality found in the order impugned. The interim stay granted in this case shall stand vacated.

Sd/-

A. BADHARUDEEN, JUDGE Cak APPENDIX OF OP(C) 1226/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 31.01.2009 PASSED IN FDIA NO. 455/2006 IN OS NO.

616/1997 ON THE FILE OF PRINCIPAL MUNSFFI'S COURT PALAKKAD.

EXHIBIT P2 TRUE COPY OF EP NO. 95/2014 IN FDIA NO.

455/2006 IN OS NO. 616/1997 ON THE FILE OF PRINCIPAL MUNSIFF'S COURT, PALAKKAD.

EXHIBIT P3 TRUE COPY OF THE OBJECTIONS FILED TO EXHIBIT P2 BY THE PETITIONERS HEREIN.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 13.11.2019 PASSED IN EP NO. 95/2014 IN FDIA NO.

455/2006 IN OS NO. 616/1997 ON THE FILE OF PRINCIPAL MUNSIFF'S COURT, PALAKKAD.

//TRUE COPY//

PA TO JUDGE

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