Kerala High Court
Karunya Charitable Society ... vs The Latin Catholic Diocese on 3 October, 2024
2024:KER:73470
O.P.(C). No.2045 of 2024 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
OP(C) NO. 2045 OF 2024
AGAINST THE ORDER IN EA 4/2022 IN EA NO.9 OF 2022 OF III
ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM ARISING OUT OF
THE ORDER/JUDGMENT DATED IN EP NO.123 OF 2003 OF III
ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM
PETITIONER/PETITIONER IN THE EA/ADDITIONAL JUDGMENT DEBTORS 6
TO 8:
1 KARUNYA CHARITABLE SOCIETY REPRESENTED BY THE
GENERAL SECRETARY, K.PARAMESWARAN NAR
AGED 60 YEARS
REG. NO. 732/1990, CONVENT ROAD, GENERAL HOSPITAL
JUNCTION, THIRUVANANTHAPURAM, PIN - 695009
2 THE PRESIDENT, KARUNYA CHARITABLE SOCIETY
REG. NO. 732/1990, CONVENT ROAD,GENERAL HOSPITAL
JUNCTION,TRIVANDRUM, PIN - 695009
3 THE SECRETARY, KARUNYA CHARITABLE SOCIETY
REG. NO. 732/1990, CONVENT ROAD, GENERAL HOSPITAL
JUNCTION,TRIVANDRUM, PIN - 695009
BY ADVS.
DINOOP P.D.
M.R.SUDHEENDRAN
RICHU HANNA RANJITH
S.I.SHAH
2024:KER:73470
O.P.(C). No.2045 of 2024 :2:
RESPONDENT/RESPONDENT/DECREE HOLDER:
THE LATIN CATHOLIC DIOCESE
REPRESENTED BY ITS BISHOP RT.REV. DR. SUSAI PAKKIAM
(DIED) PRESENTLY DR. THOMAS NETTO, TRIVANDRUM, PIN
- 695009
BY ADVS.
PAULY MATHEW MURICKEN
S.SAJITH(K/325/1995)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
03.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:73470
O.P.(C). No.2045 of 2024 :3:
VIJU ABRAHAM, J.
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O.P.(C) No.2045 of 2024
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Dated this the 3rd day of October, 2024
JUDGMENT
The above original petition is filed challenging Ext.P10 order dated 31.08.2024 in EA No.4/2022 & Ext.P12 order dated 31.08.2024 in EA.No.9/2022 in EP No.123/2003 in OS No. 200/1998 on the file of Addl. Munsif - III, Thiruvananthapuram.
2. The petitioners are the Additional defendants Nos.6 to 8 in OS No.200/1998 filed by the respondent, before the III Addl. Munsiff Court, Trivandrum. The suit was decreed on 07.08.2022 as per Ext.P1. Thereafter EP No.123/2003 was filed seeking execution of the above decree. The Taluk surveyor was appointed by the execution court and has found that out of the 63 cents of land, 4.398 cents, 2.347 cents and 1.309 cents (total 8.054 cents) of land was acquired by the Government and the remaining land is 54.946 which is already within the possession of the decree holders. It is the further contention of the petitioners that the plaintiff has sold 1 cent of property from the A- Schedule. As such, there is nothing to 2024:KER:73470 O.P.(C). No.2045 of 2024 :4: be executed as the entire extent of property claimed and decreed are in the possession of the decree holder. It is the contention of the petitioners that decree holder had pointed out another property having an extent of 4 cents in another Sy.No.1952/3 and building therein, which is lying separately with compound wall for which the petitioners have perfected title by adverse possession, and they are claiming the same under the guise of execution proceedings. By Ext.P3, the Taluk surveyor has reported that the entire decree schedule property remaining after the acquisition proceedings are in the possession of the petitioners and are lying within a compound wall and it is not possible to proceed against the same, the 4 cents of land, which is lying within a separate compound wall and the decree holder has not established his right over the said property. It is the contention of the petitioners that the decree holder has suppressed the fact as to the acquisition of property and sale of property involved in the execution proceedings. The execution court by Ext.P6 order has directed the Taluk Surveyor to aid the Amin of that court to identify the property based on the descriptions in the title deeds and available old revenue records 2024:KER:73470 O.P.(C). No.2045 of 2024 :5: including Litho plan so as to effect delivery at the earliest. Though the said order was challenged by filing OP(C) No.2132/2018, the same was dismissed for non-prosecution. It is the case of the petitioners that no identification has taken place till date. In the said circumstances the petitioners filed EA No.398/2018 to issue directions to the Amin to file report of identification of decree B schedule property with report and sketch of surveyor, materials used for identification and correct measurements of A & B Schedule before effecting delivery. The said EA was dismissed as per Ext.P7. Ext.P7 order was challenged by the petitioners by filing O.P.(C)No.2366/2018 and the same was dismissed as per Ext.P8 judgment. It is the contention of the petitioners that by Ext.P8 judgment though the request made by the petitioners in Ext.P7 was rejected, there is an observation that the Taluk Surveyor is bound to identify B schedule based on the description in the title deeds of the 1st respondent and the old survey records and upon such identification, the court appointed Amin should effect delivery of the property. The contention of the petitioners is that the property now being proceeded under the guise of 2024:KER:73470 O.P.(C). No.2045 of 2024 :6: execution is an entirely different property lying in another survey number and the extent is also different. In the said circumstances, EA No.4/2022 was filed to issue necessary direction to the Taluk surveyor not to survey property which is outside the scope of decree schedule and EA No.9/2022 was also filed to dismiss the EP as not executable. By Ext.P10 order, EA No.4/2022 was dismissed and by Ext.P12 order, EA No.9/2022 was also dismissed. It is aggrieved by the same that the petitioners have approached this Court.
3. The contention raised by the learned Senior Counsel appearing for the petitioners is that even though there was a direction in Ext.P6 to the Taluk Surveyor to identify the property based on the descriptions in Exts.A2 to A4 title deeds produced therein and available old revenue records including Litho plan with the aid of Amin, so as to effect the delivery at the earliest and also in Ext.P8 judgment, the said exercise has not been undertaken but the court before proceeding with the delivery of the property.
4. The learned counsel appearing for the respondent would submit that the contention of the petitioners is untenable and the 2024:KER:73470 O.P.(C). No.2045 of 2024 :7: only intention of the petitioners is to protract the execution of the decree. It is also submitted that O.S.No.200/1998 was decreed and the appeal and the second appeal filed against the same were dismissed on 05.09.2005 and 25.01.2006 respectively. Thereafter in execution of the decree, the court has issued Ext.P6, whereby a direction was issued to the Taluk Surveyor to identify the property based on the descriptions in the title deeds and available old revenue records including Litho plan. Though the said order was challenged in OP No.2132/2018, the same was dismissed for non- prosecution. Later, the execution court has issued Ext.P7 order dismissing the request of the judgment debtors 6 and 8, who are the petitioners herein, to direct the Amin to file a report, identifying the decree B schedule property with the sketch of a Surveyor, material used for identification and correct measurements of A & B Schedule properties before effecting delivery. The said order was also challenged by the petitioners herein in OP(C)No.2366/2018, but the same was dismissed as per Ext.P8 judgment, wherein this Court has held that the only intention of the petitioners is to protract the execution proceedings 2024:KER:73470 O.P.(C). No.2045 of 2024 :8: by raising untenable contentions and held in paragraph 11 as follows:
"11. As observed at the outset, this original petition is another classic example of how the execution proceedings can be protracted by raising untenable contentions, capitalising on the inability of officials entrusted with the task of delivery. It is pertinent to note that, the petitioners have nowhere stated as to how they came to be in possession of the property, other than as the tenants under the 1st defendant. As rightly held by the executing court, the Taluk Surveyor is bound to identify B schedule based on the description in the title deeds of the 1st respondent and the old survey records and upon such identification, the court appointed Amin should effect delivery of the property. The contention that the Amin should be called upon to file a report in court before effecting the delivery, is nothing but an attempt to open up another round of litigation and cannot therefore be countenanced. Moreover, the challenge against Exhibit P4 having failed, petitioners cannot maintain an independent challenge against Exhibit P6 order. In any event, this is not a case for this Court to exercise its supervisory jurisdiction under Article 227 of the Constitution of India."
It is thereafter that Ext.P9 application was filed seeking a direction to the Surveyor and executing officer concerned not to survey or deliver the property that do not have the distinctions of the decree 2024:KER:73470 O.P.(C). No.2045 of 2024 :9: schedule, which was dismissed as per Ext.P10 order. Ext.P11 application was also preferred wherein a request was made to dismiss the execution petition, which was declined as per Ext.P12. On the basis of the same, the contention raised by the learned counsel for the respondent is that the only intention of the petitioners is to delay the execution of the judgment and decree, which was upheld in Appeal and also in the Second Appeal.
5. I have heard the rival contentions on both sides.
6. The basic contention raised by the learned Senior Counsel for the petitioners is that the delivery of the property is going to be effected without complying with the directions in Ext.P6 order of the execution court and the direction in Ext.P8 judgment, wherein the Taluk Surveyor was directed to identify the property based on the descriptions in Exts.A2 to A4 title deeds marked in the trial side and available old revenue records including Litho plan with the aid of Amin so as to effect the delivery at the earliest. On the specific assertion made by the learned Senior Counsel for the petitioners that there is non-compliance of the directions in Ext. P6 order and Ext.P8 judgment issued in OP(C) No.2366/2018, this Court has 2024:KER:73470 O.P.(C). No.2045 of 2024 : 10 : called for a report from the execution court regarding the present stage of the case and also regarding the non-compliance of the directions. It was reported by the execution court that as per order dated 14.08.2018 a Taluk Surveyor was deputed to identify the property based on the available old survey records and the description of the property in the title deeds, so as to enable the Amin to deliver decree B schedule property. On 29.08.2018 judgment debtors 6 to 8(the petitioners herein) filed an affidavit stating that original petition is preferred against the order dated 14.08.2018 and hence case was posted for producing stay order. Later the petitioners filed OP(C)No.2366/2018 and the said original petition was dismissed by this Court as per Ext.P8 judgment with an observation that the Taluk Surveyor is bound to identify B schedule based on the description in the title deeds of the 1 st respondent and the old survey records and upon such identification, the court appointed Amin should effect delivery of the property. Thereafter the judgment debtors filed EA No.148/2022 and 406/2022, which were dismissed by the execution court. Thereafter several execution applications were filed by the 2024:KER:73470 O.P.(C). No.2045 of 2024 : 11 : judgment debtors which were also dismissed. Later, the Taluk Surveyor was deputed to identify the property and to assist Amin to effect delivery in accordance with the order dated 14.08.2018 and it was posted for report on 06.09.2024. On 06.09.2024 the counsel for the judgment debtors produced order of this Court in OP(C) No.1959/2024 whereby the delivery of the property was deferred for ten days as copies of the orders impugned in the original petition was not issued to the petitioners and accordingly the case was posted to 25.09.2024 for delivery in accordance with Exts.A2 to A4 title deeds marked at the trial side on identification of the property.
7.The only contention raised by the learned Senior Counsel appearing for the petitioners is that the Taluk Surveyor was not deputed to identify the property to assist the Amin to effect the delivery. But it is to be noted that as per order dated 14.08.2018 a Taluk Surveyor was deputed along with the Amin to identify the property so that the delivery of the property could be effected. But only due to the challenge made by the petitioners in various proceedings and also due to filing of various execution applications 2024:KER:73470 O.P.(C). No.2045 of 2024 : 12 : that the said order could not be complied with. In view of the above, the contention raised by the learned Senior Counsel that the delivery is going to be effected without deputing a Taluk Surveyor and Amin to identify the property is totally unfounded and only to be rejected, inasmuch as the court has already issued an order dated 14.08.2018 for the said purpose and the same could not be done only due to the challenge made by the petitioners by filing various original petitions and also by filing various execution applications in the Execution Petition.
8. Yet another aspect to be considered is that by Ext.P6 order dated 14.08.2018, the Taluk Surveyor and Amin was deputed to identify the property. The petitioners challenged the said order in OP(C) No.2132/2018 and the said original petition was dismissed for non-prosecution. Later Ext.P7 order was issued in the EA filed by the petitioners wherein they have requested for a direction to the Amin to file a report identifying the B schedule property with sketch of the surveyor, and the said order though challenged before this Court in OP(C)No.2366/2018, the same was rejected by Ext.P8 judgment observing that the same is only an attempt to 2024:KER:73470 O.P.(C). No.2045 of 2024 : 13 : protract the execution proceedings and since OP(C)No.2132/2018 challenging the order dated 14.08.2018(Ext.P6) is dismissed for non-prosecution, the petitioners could not make an independent challenge against Ext.P7 order. After challenging Ext.P6 order deputing the Taluk Surveyor to assist the Amin in identifying the property by filing O.P.No.2132/2018 and the said original petition being dismissed, the contention now taken by the petitioners in the present original petition that delivery cannot be effected without identification of the property with the assistance of the Taluk Surveyor is absolutely without any bona fides and is intended only to protract the proceedings.
9. Since the only ground raised by the learned Senior Counsel appearing for the petitioners is that the Taluk Surveyor and the Amin deputed as per Ext.P6 order has not identified the property and therefore, the delivery should not be effected, based on the report submitted by the Execution Court that the court is taking steps for deputing a Taluk Surveyor and Amin for identifying the property in accordance with title deeds and old survey records and for delivery of the property and that the same could not be effected 2024:KER:73470 O.P.(C). No.2045 of 2024 : 14 : due to the filing of various original petitions and execution applications by the petitioners herein, I find absolutely no reason to interfere with the orders impugned in this original petition, which are filed without any bona fides and with an intention to delay the execution proceedings. The execution court shall take further proceedings in accordance with law, as per Ext.P6 order dated 14.08.2018 as well as the observations made in Ext.P8 in OP(C) No.2366/2018 and finalise the proceedings without any delay.
The original petition is accordingly dismissed.
Sd/-
VIJU ABRAHAM JUDGE sm/ 2024:KER:73470 O.P.(C). No.2045 of 2024 : 15 : APPENDIX OF OP(C) 2045/2024 PETITIONER EXHIBITS Exhibit p1 TRUE COPY OF THE DECREE DATED 07/08/2022 IN OS NO. 200/1998 ON THE FILE OF III ADDL. MUNSIFF, THIRUVANANTHAPURAM Exhibit P2 TRUE COPY OF THE EP NO. 123/2003 FILED RESPONDENT/DECREE HOLDER BEFORE THE III ADDL. MUNSIF, THIRUVANANTHAPURAM Exhibit P3 TRUE COPY OF THE REPORT AND SKETCH DATED 16/09/2014 FILED BY THE TALUK SURVEYOR Exhibit P4 RELEVANT PORTION OF THE REPORT DATED 16/10/2014 OF THE TALUK SURVEYOR Exhibit P5 TRUE COPY OF THE REPORT DATED 20/09/2014 FILED BY THE VILLAGE OFFICER BEFORE THE III ADDL. MUNSIF COURT Exhibit P6 TRUE COPY OF THE ORDER DATED 14/08/2018 IN EP NO. 123/2003 IN OS NO. 200/1998 OF THE ADDITIONAL MUNSIFF -III, TRIVANDRUM Exhibit P7 A TRUE COPY OF THE ORDER DATED 29/08/2019 Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 29/11/2021 IN OP© NO. 2366/2018 Exhibit P9 TRUE COPY OF THE EA NO. 4/2022 DATED 3/1/2022 IN EP NO. 123/2003 OF THE III ADDITIONAL MUNSIF COURT, TRIVANDRUM Exhibit P10 TRUE COPY OF THE ORDER DATED 31/08/2024 IN EA NO. 4/2022 IN EP NO. 123/2003 OF THE III ADDITIONAL MUNSIF COURT, TRIVANDRUM 2024:KER:73470 O.P.(C). No.2045 of 2024 : 16 : Exhibit P11 TRUE COPY OF THE EA NO. 9/2022 DATED 3/1/2022 IN EP NO. 123/2003 OF THE III ADDITIONAL MUNSIF COURT, TRIVANDRUM Exhibit P12 TRUE COPY OF THE ORDER DATED 31/08/2024 IN EA NO. 9/2022 IN EP NO. 123/2003 OF THE III ADDITIONAL MUNSIF COURT, TRIVANDRUM