Kerala High Court
Chinnappa Abdul Nazar vs Subair C on 31 March, 2023
OP(C) No.647/2023 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
Friday, the 31st day of March 2023 / 10th Chaithra, 1945
OP(C) NO. 647 OF 2023
OS 436/2007 OF I ADDITIONAL SUB COURT, KOZHIKODE
ORIGINAL PETITIONER/DECREE HOLDER/DEFENDANT:
CHINNAPPA ABDUL NAZAR, AGED 57 YEARS, S/O MUKKALI AHAMMED KUNHI,
RESIDING IN THE ADDRESS KHADHEEJA MANZIL, PANNIYANKARA, KALLAYI P O,
KOZHIKODE DISTRICT, PIN - 673003.
RESPONDENT/JUDGMENT DEBTOR/PLAINTIFF:
SUBAIR C, AGED 62 YEARS, S/O MUKKALI AHAMMED KUNHI, RESIDING IN THE
ADDRESS KHADHEEJA MANZIL, PANNIYANKARA, KALLAYI P O, KOZHIKODE
DISTRICT, PIN - 673003.
Op (civil) praying inter alia that in the circumstances stated in
the affidavit filed along with the OP(C) the High Court be pleased to
issue an interim direction commanding the 1st Additional Sub Court,
Kozhikode to submit a report as to the time required for effecting
delivery of the premises in question, pending consideration of the above
original petition, in the interest of justice.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of OP(C) and this Court's order dated
24-03-2023 and upon hearing the arguments of SRI.G.SREEKUMAR (CHELUR),
Advocate for the petitioner and of M/S. K.MOHANAKANNAN, H.PRAVEEN
(KOTTARAKARA), Advocates for the respondent, the court passed the
following:
(P.T.O)
OP(C) No.647/2023 2/5
C.S. DIAS,J.
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O.P.© No.647 of 2023
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Dated this the 31st of March, 2023
ORDER
By order dated 24.03.2023, this Court had stayed
Ext.P6 order passed in EP No.164/2022 in FDIA
No.2021/2012 by the Court of the Subordinate Judge,
Kozhikode, wherein the court below had directed the
parties to seek for a clarification from the Honourable
Supreme Court in SLP (C) No.26325/2022 regarding the
interpretation of the order.
2. On a reading of Ext.P5 order passed by the
Honourable Supreme Court, this Court does not find any
ambiguity in the order warranting a clarification because
the respondent was directed to file a written undertaking
before the court below agreeing to give vacant possession
of the plaint schedule property to the petitioner within
five months from 26.09.2022.
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O.P.© No.647 of 2023
3. Indisputably the time period fixed by the Honourable
Supreme Court to give vacant possession of the property to
the petitioner has lapsed.
4. Today, when the original petition was taken up for
consideration, Sri.G.Sreekumar (Chelur) submitted that the
petitioner has no objection in the respondent withdrawing an
amount of Rs.1,36,96,497/- that is lying in deposit before the
court below, which is the undisputed share of the
respondent.
5. Sri.K.Mohanakannan, the learned Counsel appearing
for the respondent submitted that the respondent may be
given a breathing time of one week after the amount is
released, to find an alternate accommodation, to vacate the
plaint schedule property.
6. I find the suggestion made to be just and reasonable.
Nevertheless, I am of the view that the respondent has to
vacate the plaint schedule property before the amount is
handed over to him, to ensure that the order of the
Honourable Supreme Court is complied with by both parties
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O.P.© No.647 of 2023
on the same day, in its letter and spirit, which would ensure
complete justice to both sides and allay the fears and
apprehension of both parties.
Resultantly, in exercise of the power of superintendence
of this Court under Article 227 of the Constitution of India, I
direct the Court of the Additional Subordinate Judge-I,
Kozhikode to forthwith depute the Amin of the Court and
ensure that the vacant possession of the plaint schedule
property is handed over to the petitioner on or before
10.04.2023. On the same day the possession is handed over
to the petitioner, in the afternoon, the amount of
Rs.1,36,96,497/- lying in deposit shall be released to the
respondent, in accordance with law. The Registry is directed
to communicate this order to the court below.
Post on 12.04.2023 for compliance report.
Hand over.
sd/-
C.S.DIAS, JUDGE
rkc/31.03.23
31-03-2023 /True Copy/ Assistant Registrar
OP(C) No.647/2023 5/5
APPENDIX OF OP(C) 647/2023
Exhibit P5: A TRUE COPY OF THE JUDGMENT DELIVERED BY THE HON'BLE
SUPREME COURT OF INDIA IN SPECIAL LEAVE PETITION NO
26325 OF 22 DATED 26.9.22.
Exhibit P6: A TRUE COPY OF THE ORDER PASSED IN EXECUTION PETITION
NO 164 OF 22 IN FDIA NO 2021 OF 12 IN O S NO 436 OF 07
DATED 6.3.23 BY THE 1ST ADDITIONAL SUB COURT,
KOZHIKODE.
31-03-2023 /True Copy/ Assistant Registrar
