A party must utilize statutory remedies before seeking extraordinary relief from higher courts regarding execution proceedings.

JUDGMENT

Dated this the 22nd day of July, 2022 The original petition is filed to set aside the order dated 30.06.2022 passed in E.P.No.36/2021 in O.S.No.57/2004 (Ext.P4) of the Court of the Munsiff, Attingal.

2. The petitioner's case, in a nutshell, relevant for determination of the original petition is that he was the defendant in the above suit, which has been filed by the respondent, for an order of eviction. The petitioner had filed another suit as O.S.No.75/2004 against the respondent, for declaration of title and consequential injunction. The suits were consolidated and jointly tried. By a common judgment dated 11.12.2009, the trial court dismissed the suit filed by the petitioner and decreed the suit filed by the respondent. The petitioner challenged the common judgment and decree by filing A.S.Nos.72/2010 and 73/2010 before the Court of the Subordinate Judge, Attingal (Appellate Court). The Appellate Court also by its common judgment dated 16.09.2020, dismissed the appeals. The petitioner has filed second appeals before this Court. In the meantime, the respondent has put the decree in O.S.No.57/2004 to execution by filing E.P.No.36/2021. The court below, without issuing notice under Order 21 Rule 22 of the Code of Civil Procedure, 1908 , has directly issued Ext.P3 notice under Order 21 Rule 35, 95 or 96, directing the petitioner to appear on 23.02.2022. The petitioner appeared before the execution court and has prayed for time to file his objection to E.P.No.36/2021. However, the court below, adjourned the execution petition to 30.06.2022 as the last chance and has passed the impugned Ext.P4 order, directing delivery of the property by 25.07.2022. Ext.P4 order is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.J.Jayakumar, the learned counsel appearing for the petitioner.

4. The point is whether there is any illegality or error in Ext.P4 order passed by the court below.

5. On an analysis of the pleadings and materials on record, it is seen that the trial court had, by Ext.P1 common judgment, dismissed the suit filed by the petitioner and decreed O.S.No.57/2004 filed by the respondent. The said common judgment and decree were confirmed by the Appellate Court. It is alleged that the petitioner has now filed second appeals before this Court. The numbers and the dates on which the second appeals were filed are not averred in the original petition. The respondent has filed E.P.No.36/2021, before the court below. The court below had issued Ext.P3 notice to the petitioner on 07.02.2022, informing him that the E.P. stands posted on 23.02.2022. The petitioner has not filed any written objection to the execution petition. Thereafter, the court below by the impugned Ext.P4 order, on the finding that the petitioner has not filed any objections to execution petition, has ordered delivery of the property. Ext.P5 order was passed on 30.06.2002. The petitioner has approached this Court on 22.07.2022 and has sought for stay of the execution proceedings on the ground that Ext.P4 order is erroneous.

I do not find any error in Ext.P4 order passed by the court below, especially when the petitioner has not chosen to file an objection to the execution petition or moved the second appeals allegedly filed before this Court and sought for the stay of the execution proceeding. Without resorting to the statutory and alternative remedy contemplated under law, the petitioner cannot aspire to get the execution proceeding stayed by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Without prejudice to the right of the petitioner to move the second appeals and seek for the stay of the execution petition, the original petition is dismissed.

Sd/-

C.S.DIAS Judge

NR/22/07/2022

APPENDIX PETITIONER'S EXHIBITS Exhibit P-1 TRUE COPY OF THE COMMON JUDGMENT DATED

11/12/2009 IN O.S. NO. 57/2004 AND O.S. NO.

75/2004 OF MUNSIFF COURT, ATTINGAL .

Exhibit P-2 TRUE COPY OF THE E.P. NO. 36/2021 IN O.S. NO.

57/20