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Kerala High Court
Susmitha vs Preeja on 7 April, 2026
O.P.(C) No.365 of 2026 1 2026:KER:31386
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 7TH DAY OF APRIL 2026 / 17TH CHAITHRA, 1948
OP(C) NO. 365 OF 2026
AGAINST THE ORDER DATED 17.01.1926 IN EP NO.39 OF 2011 OF
MUNSIFF MAGISTRATE COURT, PATTAMBI
PETITIONER(S)/6TH SUPPLEMENTAL RESPONDENT IN EP
AND LEGAL HEIR OF THE DECEASED ORIGINAL RESPONDENT
AND ORIGINAL DEFENDANT IN OS :
SUSMITHA
AGED 41 YEARS, D/O. LATE SANKARANKUTTY,
VADAKKEPATTATH HOUSE, ARANGOTTUKARA P.O.,
EZHUMANGAD, PALAKKAD, KERALA,
NOW RESIDING AT THEKKEVEETTIL HOUSE,
NJANGATTIRI P.O., PALAKKAD,
KERALA, PIN - 679532
BY ADVS. K.RAMAKUMAR, SR.
SHRI.T.RAMPRASAD UNNI
SRI.S.M.PRASANTH
SHRI.SHEHIN S.
SMT.NAMITHA K.J.
SMT.RESHMA DAS P.
RESPONDENT(S)/PETITIONER & SUPPLEMENTAL RESPONDENTS 2 TO 5/
PLAINTIFF AND LEGAL HEIRS OF DECEASED ORIGINAL DEFENDANT IN OS:
1 PREEJA
AGED 40 YEARS
D/O. KULAPARAMBIL PRABHAKARAN,
AKATHETHARA AMSOM DESOM, PALAKKAD TALUK,
PALAKKAD DISTRICT, PIN - 678008
2 SUNIL KUMAR V.P.
AGED 51 YEARS
2. SUNIL KUMAR V.P., NOW AGED 51 YEARS,
SON OF LATE SANKARANKUTTY, VADAKKEPATTATH HOUSE,
ARANGOTTUKARA P.O., EZHUMANGAD, PALAKKAD,
KERALA, PIN - 679 532., NOW AGED 51 YEARS,
O.P.(C) No.365 of 2026 2 2026:KER:31386
SON OF LATE SANKARANKUTTY,
VADAKKEPATTATH HOUSE, ARANGOTTUKARA P.O.,
EZHUMANGAD, PALAKKAD, KERALA-PIN-679532.
3 SUNITHA V.P.,
AGED 48 YEARS
D/O. LATE SANKARANKUTTY, VADAKKEPATTATH HOUSE,
ARANGOTTUKARA P.O., EZHUMANGAD, PALAKKAD,
KERALA, PIN - 679532
4 SURESH BABU V.P
AGED 44 YEARS,SON OF LATE SANKARANKUTTY,
VADAKKEPATTATH HOUSE, ARANGOTTUKARA P.O.,
EZHUMANGAD, PALAKKAD, KERALA, PIN - 679532
5 SUMALATHA
AGED 46 YEARS
SUMALATHA, D/O. LATE SANKARANKUTTY,
VADAKKEPATTATH HOUSE, ARANGOTTUKARA P.O.,
EZHUMANGAD, PALAKKAD, KERALA,
NOW RESIDING AT THEKKEVEETTIL HOUSE,
NJANGATTIRI P.O., PALAKKAD, KERALA,
PIN - 679532
BY ADVS.
SRI.P.K.MOHANAN(PALAKKAD)
SMT.DEVIKA S.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07.04.2026, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) No.365 of 2026 3 2026:KER:31386
EASWARAN S., J.
-----------------------------
O.P.(C) No.365 of 2026
-------------------------------------
Dated this the 7th day of April, 2026
JUDGMENT
The present original petition challenges Ext.P6 order on an
execution petition for the delivery of the property.
2. The 1st respondent herein filed O.S. No.6 of 1993 before the
Munsiff Magistrate Court, Pattambi, seeking for recovery of
possession. The suit was dismissed on 28.6.2002, and on appeal, A.S.
No.56 of 2002, the learned Sub Judge, Ottappalam, reversed the
findings of the trial court and decreed the suit. Thereafter, R.S.A.
No.586 of 2011 was preferred before this Court. During the pendency
of the appeal, the original appellant/defendant died, and the
additional appellants 2 to 6 were impleaded. By judgment dated
21.10.2025, this Court dismissed the appeal and confirmed the
judgment and decree passed by the Sub Court, Ottappalam, in A.S.
No.56 of 2002. After the judgment was rendered by this Court, the
decree was put to execution. During the execution proceedings, the
O.P.(C) No.365 of 2026 4 2026:KER:31386
petitioner came up with a strange plea that the 5th judgment debtor
(4th respondent herein) before this Court in R.S.A. No.586 of 2011 is
a mentally unsound person and therefore the enquiry under Order
XXXII Rule 15 of the Code of Civil Procedure has to be complied with
and, since it has not complied, the delivery cannot be effected. The
grievance of the petitioner is that her objection has not been taken
note of by the Executing Court while ordering delivery of the
property, and hence this Original Petition (Civil).
3. Heard Sri. Ramakumar K, the learned Senior Counsel
appearing for the petitioner and Sri. P.K. Mohanan, the learned
counsel appearing for the 1st respondent.
4. The learned Senior Counsel appearing for the petitioner
pointed out that, since the 5th judgment debtor is alleged to be of
unsound mind and in the absence of compliance with the procedure
prescribed under Order XXXII Rule 15 of the Code of Civil Procedure,
the entire proceedings will lapse. He further submitted that without
conducting an enquiry, proceedings cannot be taken forward since
the order to be executed is a nullity. Therefore, the learned Senior
counsel prayed that an enquiry as regards the mental status of the 5th
O.P.(C) No.365 of 2026 5 2026:KER:31386
judgment debtor/4th respondent herein be undertaken by the
Executing Court before the delivery is ordered.
5. Per contra, Sri.P.K.Mohanan, the learned counsel for the
decree holder, submitted that when the 5th judgment debtor before
the executing court got impleaded himself as the 5th appellant in
R.S.A. No.586 of 2011, he had no such case, and, it is only after the
dismissal of the appeal during the execution stage, such a plea is
taken. The said plea is not only preposterous but intended to protract
or delay the execution of the decree.
6. I have considered the submissions raised across the Bar and
perused the impugned order.
7. It is pertinent to mention that when the 1st appellant before
this Court in R.S.A. No.586 of 2011 died, the legal heirs of the
deceased appellant got themselves impleaded by filing I.A. No.2 of
2025, which was allowed on 26.9.2025 by this Court. At that point of
time, there was no case pleaded or proved that the additional 5th
appellant before this Court in R.S.A. No.586 of 2011 was suffering
from any mental infirmity. That be so, after the dismissal of the
appeal, the 6th judgment debtor before the executing court cannot
O.P.(C) No.365 of 2026 6 2026:KER:31386
raise such a plea. Even otherwise, this Court finds that the estate of
the original defendant is substantially represented by the other legal
heirs. That be so, it is too late to contend that the 5th judgment debtor
before the executing court is suffering from mental infirmity and
therefore an enquiry under Order XXXII Rule 15 of the Code of Civil
Procedure had to be complied with.
Accordingly, this Court finds that there is no merit in this
original petition. This original petition fails and is dismissed.
Sd/-
EASWARAN S.
JUDGE
NS
O.P.(C) No.365 of 2026 7 2026:KER:31386
APPENDIX OF OP(C) NO. 365 OF 2026
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF PLAINT IN O.S. NO. 6 OF 1996 ON
THE FILE OF THE MUNSIFF-MAGISTRATE'S COURT,
PATTAMBI
Exhibit P2 TRUE COPY OF WRITTEN STATEMENT IN OS 6 OF 1996
ON THE FILE OF THE MUNSIFF-MAGISTRATE'S COURT,
PATTAMBI
Exhibit P3 TRUE COPY OF JUDGMENT DATED 21.10.2025 OF THIS
HON'BLE COURT IN R.S.A. NO. 586 OF 2011
Exhibit P4 TRUE COPY OF THE APPLICATION IN E.P. NO.39 OF
2011 IN O.S. NO. 6 OF 1996 ON THE FILE OF THE
MUNSIFF-MAGISTRATE'S COURT, PATTAMBI
Exhibit P5 TRUE COPY OF THE OBJECTION DATED 09.01.2026 IN
E.P. NO.39 OF 2011 IN O.S. NO.6 OF 1996 FILED
BY THE PETITIONER HEREIN AND RESPONDENTS 2 TO
Exhibit P6 TRUE COPY OF ORDER DATED 17.01.2026 IN EP
NO. 6 OF 2011 IN OS NO.6 OF 1996 ON THE FILE OF
THE MUNSIFF-MAGISTRATE'S COURT, PATTAMBI
RESPONDENT EXHIBITS
Exhibit R1(a) TRUE COPY OF THE I.A. NO. 1/2025, I.A.
NO.2/2025, C.M. APPLN. NO.1/2025 IN R.S.A.
586/2011 ON THE FILE OF THIS HON'BLE COURT ALONG
WITH THE COPY OF THE VAKKALATH FILED BY THE
PETITIONER AND RESPONDENTS 2 TO 6 OBTAINED FROM
THE INTERNET.
