Kerala High Court
Beena vs T.K. Jalaludeen Musliyar on 17 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
OP(C) NO. 108 OF 2023
IN E.A.NO.15/2023 IN E.P.NO.48/2022 IN OS 102/2014 OF SUB COURT
AT PUNALUR, KOLLAM.
PETITIONER:
BEENA,
AGED 57 YEARS,
D/O (LATE) SHAMSUDEEN,
BARDH, ULIYAKOVIL,
KOLLAM,
PIN - 691019.
BY ADVS. AYYAPPAN SANKAR
S.HRIDYA
RESPONDENT:
T.K. JALALUDEEN MUSLIYAR,
AGED 80 YEARS,
S/O (LATE) THANGAL KUNJU MUSLIYAR,
MYSAN ARMITAGE, KILIKOLLOOR,
KOLLAM,
PIN - 691004
SMT. A.JANI
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C)No.108/2023
-:2:-
Dated this the 17th day of January,2023
JUDGMENT
The original petition is filed to direct the Court of
the Subordinate Judge, Kollam, to re-consider the
request of the petitioner in Ext P2 application.
2. The concise case of the petitioner, relevant
for the determination of the original petition, is: she
was the plaintiff in O.S.No.102/2014 before the court
below, filed against the respondent, for a decree for
cancellation of a sale deed and other ancillary reliefs.
The respondent raised a counter claim for a decree of
mandatory injunction. The suit was decreed and the
counter claim was dismissed. The respondent
challenged the decree before this Court in
R.F.A.No.172/2020. This Court, reversed the impugned
decree by dismissing the suit and decreeing the
counter claim. The petitioner was directed to give
O.P.(C)No.108/2023
vacant possession of the building to the respondent.
Even though the petitioner challenged the judgment
before the Hon'ble Supreme Court, the SLP was
dismissed. The respondent has laid the decree to
execution by filing E.P.No.48/2022. The petitioner is
totally bedridden and needs six months' time to vacate
the building. Although, she filed Ext P2 application
seeking further time to vacate the premises, the
Execution Court dismissed Ext P2 application. The
petitioner has not received the copy of the order
passed in Ext P2. Hence, the original petition.
3. Heard; Sri. Ayyappan Sankar, the learned
counsel appearing for the petitioner and
Smt. A. Jani, the learned counsel appearing for the
respondent.
4. On an analysis of the pleadings and materials
on record, it can be gathered that, this Court had
O.P.(C)No.108/2023
directed the petitioner to vacate the building within
three months from 16.11.2022. Admittedly, the
judgment has become final and the time period to
vacate the building has lapsed.
5. The petitioner's present prayer is that she
requires six months more time to vacate the building.
6. It is trite, the Execution Court cannot go
beyond the decree.
7. In the above background, I am of the view
that the petitioner's remedy is to move this Court in
R.F.A.No.172/2020 and seek for enlargement of time,
rather than filing an application before the Execution
Court. Furthermore, judicial discipline warrants me to
adopt the above course.
In the result, with out prejudice to the right of the
petitioner to work out her remedies as observed above,
the original petition is dismissed. In order to enable
O.P.(C)No.108/2023
the petitioner to move this Court in R.F.A.No.172/2020,
the Court of the Subordinate Judge, Kollam, is directed
to defer the delivery of the property in E.P.No.48/2022
till 27.01.2023.
Sd/-
C.S.DIAS,JUDGE
DST/17.01.23 //True copy//
P.A.To Judge
O.P.(C)No.108/2023
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE EXECUTION PETITION E.P.
NO.48/2022 IN O.S. NO.102/2014 DATED
5.7.2022 ON THE FILE OF SUB COURT, KOLLAM
EXHIBIT P2 TRUE COPY OF THE PETITION E.A. NO.15/2023
IN E.P. NO.48/2022 IN O.S. NO.102/2014
DATED 10.1.2023 ON THE FILE OF SUB COURT,
KOLLAM FOR TIME TO VACATE AND TO KEEP ORDER
FOR DELIVERY IN ABEYANCE
EXHIBIT P3 TRUE COPY OF THE ADVANCE PETITION IN E.P.
NO.48/2022 IN O.S. NO.102/2014 DATED
10.1.2023 ON THE FILE OF SUB COURT, KOLLAM
EXHIBIT P4 TRUE COPY OF THE PRINT OUT OF PROCEEDINGS
OF HON'BLE SUB COURT, KOLLAM IN E.P.
NO.48/2022 IN O.S. NO.102/2014 ON 3.1.2023
RESPONDENT'S EXHIBITS: NIL
