IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 24^TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945 OP(C) NO. 1011 OF 2023 AGAINST THE PROCEEDINGS IN E.P.NO.87/2022 IN O.S.NO.236/2012 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM PETITIONER/JUDGMENT DEBTOR:

REMA M.P., AGED 70 YEARS, W/O. LATE LAKSHMI NARYANAN, 'SIVA KRIPA', 40/162 CLUB ROAD, ERNAKULAM VILLAGE, ERNAKULAM KARITHALA DESOM, PIN - 682011 BY ADVS.

ASWIN GOPAKUMAR ANWIN GOPAKUMAR ADITYA VENUGOPALAN NIKITHA SUSAN PAULSON MAHESH CHANDRAN GAUTHAM KRISHNA E.J.

AVINASH KURUNGOT SHALLET K. SAM RESPONDENT/DECREE HOLDER:

MOHAN K, AGED 56 YEARS, S/O. KULANTHEVAL CHETTIAR, OPP. COLLECTOR'S CAMP OFFICE, RETD. JUSTICE K.T.KOSHY AVENUE ( CLUB ROAD), ERNAKULAM, PIN - 682011 BY ADVS.

JAYACHANDRAN KV RAJU V.MATHEW(R-195)

HARISHANKAR K.J.(K/1871/2020)

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Exhibits P16 and P17 orders were passed by the execution court in the execution of a counterclaim decree at the hands of the counterclaim decree holders. The decree granted by way of counterclaim is pertaining to the fixation of the boundary of the property of the defendant from that of the plaintiff. The surveyor and the commissioner who visited the property at the trial stage prepared a plan pertaining to the property, which was accepted by the trial court and decreed the counterclaim by annexing the plan thereof. Subsequently, it was put in execution and Amin deputed with the assistance of the village officer, surveyed the property and ascertained the boundary separating the property of both parties and submitted a report in that behalf, Ext.P17, based on which Ext.P16 order was passed by closing the execution proceedings. These two orders sought to be stayed by the petitioner under Article 227 of the Constitution on the ground that she was not given any opportunity to contest the counterclaim, though she was in the status of the plaintiff in the original suit. It is submitted that at the trial stage, the plaintiff remained absent without contesting the suit, which has resulted in dismissal against which she had preferred an appeal and it is pending consideration. If they are aggrieved by the counterclaim decree and judgment they are at liberty to obtain a stay from the First Appellate Court, provided that there should be an appeal against the said decree. All these matters are left open for consideration. Nothing was brought to the notice of this Court in order to exercise the extraordinary jurisdiction pertaining to the passing of the Ext.P16 and P17 orders and hence the present OP (C) will stand dismissed without prejudice to the right of parties to exhaust any other remedy available.

Sd/-

P.SOMARAJAN JUDGE rkr-24/05/23 APPENDIX OF OP(C) 1011/2023 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE PLAINT FILED BY THE PETITIONER IN O. S. NO. 236 OF 2012 ON THE FILES OF THE HON'BLE FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O. S. NO. 236 OF 2012 ON THE FILES OF THE HON'BLE FIRST ADDITIONAL MUNSIFF COURT, ERNAKULAM Exhibit P3 A TRUE COPY OF THE EX PARTE JUDGMENT AND DECREE DATED 23.01.2016 PASSED BY THE HON'BLE FIRST ADDITIONAL MUNSIFF, COURT ERNAKULAM IN O. S. NO. 236 OF 2012 Exhibit P4 A TRUE COPY OF R. P. NO. 23 OF 2023 IN O. S.

NO. 236 OF 2012 FILED BY THE PETITIONER Exhibit P5 A TRUE COPY OF I. A. NO. 1 OF 2023 IN R. P.

NO. 23 OF 2023 FILED BY THE PETITIONER Exhibit P6 A TRUE COPY OF E. A. NO. 66 OF 2023 IN E. P.

NO. 87 OF 2022 FILED BY THE PETITIONER UNDER ORDER 21 RULE 26 OF THE CODE OF CIVIL PROCEDURE, 1908 Exhibit P7 A TRUE COPY OF THE ORDER DATED 31.01.2023 PASSED BY THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM IN E. P. NO. 87 OF 2022 Exhibit P8 A TRUE COPY OF THE ORDER DATED 31.01.2023 PASSED BY THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM IN E. A. NO. 66 OF 2023 IN E. P.

NO. 87 OF 2022 Exhibit P9 A TRUE COPY OF THE