IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
OP(C) NO. 876 OF 2022
AGAINST THE ORDER DATED 07.04.2022 IN EA NO.2/2021 IN
E.P.NO.249/2013 IN O.S.NO.519/1992 OF MUNSIFF COURT, MANJERI
PETITIONER/RESPONDENT NO.4
PARENGAL ABOOBACKER,
AGED 70 YEARS,
S/O PARENGAL SAIDALAVI,
AKAMBADAM AMSOM,
ERANCHIMANGAD P.O,
NILAMBUR TALUK,
MALAPPURAM DIST, PIN - 679329
BY ADV P.K.MOHAMED JAMEEL
RESPONDENTS/ PETITIONER & RESPONDENT NO. 1 TO 3 & 5:
1 KATTUMUNDA NABEESA,
AGED 62 YEARS,
D/O AHAMMED,VETTEKKODE,
AKAMPADAM AMSOM DESOM,
NILAMBUR TALUK,ERANHIMANGAD P.O,
MALAPPURAM DIST , PIN - 679329
2 CHAKKACHAN ALAVI,
AGED 58 YEARS,
S/O AHAMMED, VETTEKKODE
AKAMPADAM AMSOM DESOM, NILAMBUR TALUK
ERANHIMANGAD P.O., MALAPPURAM DIST , PIN - 679329
3 KUTTIKKATTIL ISMAIL,
AGED 75 YEARS,
S/O VEERANKUTTY HAJI, VETTEKKODE
AKAMPADAM AMSOM DESOM, NILAMBUR TALUK
ERANHIMANGAD P.O,MALAPPURAM DIST, PIN - 679329
4 ALATHIM UMMUSALMA,
AGED 44 YEARS,
D/O SAIDALI, KAVALAMKKATTA
AKAMPADAM AMSOM DESOM, NILAMBUR TALUK
KAVALAMUKKATTA P.O, MALAPPURAM DIST, PIN - 679332
O.P.(C)No.876/2022
-:2:-
5 ABDUL BASHEER
VETTEKKODE,NILAMBUR AMSOM
NILAMBUR TALUK,
ERANHIMANGAD P.O,
MALAPPURAM DIST, PIN - 679329
BY ADVS. ABDUL HAKHIM M A
JOSEPH GEORGE(K/001096/2011)
M.A.AZEEZ MUSHTAQUE(K/2461/2021)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.876/2022
-:3:-
Dated this the 17th day of June,2022
JUDGMENT
The original petition is filed to set aside the order dated 07.04.2022 in E.A. Nos.02/2021 & 03/2021 in E.P. No.249/2013 in O.S. No.519/1992 (Ext.P4) of the Court of the Munsiff, Manjeri.
2. The petitioner is the fourth respondent in E.A. No.02/2021 filed in the above execution petition. The suit was decreed ex parte. Even though the petitioner had filed A.S. No.14/2016 to set aside the ex parte decree, the same was dismissed by the Court of the Subordinate Judge, Majeri and concurrently confirmed by this Court in CRP No.735/2018. The petitioner has now approached the Hon'ble Supreme Court and filed a Special Leave Petition(SLP). In the meanwhile, the first respondent has filed O.P.(C)No.876/2022 -:4:- E.A.No.02/2021 to break open the house situated in 'B' scheduled property, which is not a part of the decree. Hence, the petitioner has filed Ext.P2 counter to the above E.A. However, the court below without considering the objection, has passed Ext.P4 impugned order, by permitting the Amin to take delivery of the decree scheduled property with the assistance of the Circle Inspector of Police, Nilambur. Ext.P4 order is erroneous and wrong and is passed without considering Ext.P2 objection.
3. Pursuant to the orders passed by this Court on 31.05.2022, the learned Munsiff, Manjeri, has by communication dated 09.06.2022, informed this Court that the delivery was ordered as early ason 10.09.2015. Thereafter, the same was stayted by the District Court in I.A.No.1400/2015 in C.M.A.No.54/2015. Later, the appeal was dismissed; O.P.(C)No.876/2022 -:5:- but the execution proceedings was again passed stayed by this Court in CRP No.735/2018. Later, this Court also dismissed the revision. Then, the judgment debtors had filed E.A.Nos.444/2015, 445/2015 and 168/2019 seeking various reliefs. All those applications were dismissed by the common order dated 30.01.2020. The said orders hgave become final. Even though the Amin was directed to take delivery of the property on 05.04.2019, he could not do the same due to the non-availability of the Taluk Surveyor. Thereafter, on 10.09.2021, when the Amin went to break open the house, the same was resisted by the judgment debtors, on the ground that the execution petition was stayed by this Court. Again when the Amin went to the property on 25.05.2022, he was obstructed by a gang of people under the leadership of the Panchayat Member, Block Panchayat O.P.(C)No.876/2022 -:6:- Member and others. Hence, the decree holder has filed E.A.No.5/2022, seeking the assistance of the District Superintendent of Police, which has been allowed and the execution petition is posted for delivery to 21.06.2022.
The above sequence of events, clearly demonstrate that the petitioner and other judgment debtors have been resisting the execution petition for more than nine years. There is nothing on record, which prevents the court from enforcing its decree which has attained finality. It is only due to the resistance put forth by the judgment debtors, that the court below has ordered police assistance to the Amin to effect delivery of the property. I do not find the course adopted by the court below to be erroneous, warranting the interference of this Court under Article 227of the Constitution of India. The original petition is O.P.(C)No.876/2022 -:7:- devoid of any merits and is hence, dismissed.
Sd/-
C.S.DIAS,JUDGE
DST/17.06.22 //True copy/
P.A.To Judge
O.P.(C)No.876/2022
-:8:-
APPENDIX
PETITIONER EXHIBITS
EXHIBIT-P1 THE TRUE COPY OF THE E.A NO.02/2021 IN
E.P NO. 249/2013 OF MUNSIFF COURT,
MANJERI
EXHIBI-P2 THE TRUE COPY OF THE COUNTER IN E.A
NO.02/2021.
EXHIBIT-P3 THE TRUE COPY OF THE DECREE IN O.S NO.
519/1992 OF MUNSIFF COURT, MANJERI.
EXHIBIT-P4 THE TRUE COPY OF ORDER IN E.A NO.02/2021 DATED 07.04.2022 OF MUNSIFF COURT, MANJERI.
RESPONDENT'S EXHIBITS: NIL