IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941
OP(C).No.52 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 543/2010 DATED 15-11-2019 OF
MUNSIFF COURT, KOTTARAKKARA
PETITIONER/S/DECREE HOLDER & PETITIONER IN E.A.NO.173/2018:
SYAMALA
AGED 65 YEARS, D/O. LATE JANARDHANAN,
KOCHUTHOPPU VEEDU, ANATHALAVATTOM,
KADAKKAVOOR, CHIRAYINKEEZHU TALUK,
TRIVANDRUM DISTRICT,PIN-695 003
BY ADVS.
SRI.M.P.RAMNATH
SRI.P.RAJESH (KOTTAKKAL)
SEI.M.VARGHESE VARGHESE
SMT.S.SANDHYA
SRI.BEPIN PAUL
SRI.SHALU VARGHESE
SRI.S.DEEPAK
SRI.ANTONY THARIAN
RESPONDENT/S/JD IN E.P. & RESPONDENT 3, 1 & 2 IN E.A.NO.173/2018:
1 THAPODHANAN
AGED 74 YEARS, S/O. LATE JANARDHANAN,
FROM KOCHUVEEDU, KUTTIKKAD,
KADAKKAL VILLAGE,KOTTARAKKARA NOW HAVING PERMANENT
ADDRESS AT PUTHEN VEEDU, ANATHALAVATTOM, KADAKKAVOOR,
CHIRAYINKEEZHU TALUK, TRIVANDRUM DISTRICT,PIN-695 306
2 SUB INSPECTOR OF POLICE,
KADAKKAL POLICE STATION, KADAKKAL, KOTTARAKKARA
TALUK, KOLLAM DISTRICT,PIN-691 536
3 CIRCLE INSPECTOR OF POLICE,
KADAKKAL POLICE STATION, KADAKKAL, KOTTARAKKARA
TALUK, KOLLAM DISTRICT,PIN-691 536
R1 BY ADV. SRI.J.JAYAKUMAR
SRI.M.I.JOHNSON, SR.GP
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
In this original petition, Exts.P8 and P11 are under challenge.
2. Heard.
3. The petitioner is the decree holder, who filed E.A.No.173 of 2018 in E.P.No.55 of 2018 in O.S.No.543 of 2010 praying for issuing a direction to the Station House Officer concerned to protect the possession of the petitioner over the decree schedule property and also for taking prosecution for the violation of the decree.
4. The court below passed Ext.P8 order, dismissing the application stating that if the order is violated, the petitioner can approach the court by filing OP(C).No.52 OF 2020 proper application. It appears that the court below did not consider as to whether the decree was already violated and as to whether the police assistance sought for by the decree holder had to be granted or not, in accordance with law. Since the court below did not consider the said aspects, Ext.P8 is not sustainable.
5. As per Ext.P11, the court below stayed the execution petition till the disposal of the appeal. The application was filed under Order 21 Rule 26 CPC. It is settled law that Order 21 Rule 26 CPC is applicable only to transfer decree. The proper provision is Order 41 Rule 5(2). It is clear that the power of the execution court to stay the execution is only upto to the stage of filing the appeal. In this case, the appeal was already OP(C).No.52 OF 2020 filed. Since the appeal was already filed, the court below had no jurisdiction to stay the execution petition in the absence of any order from the appellate court. In view of the above, Ext.P11 cannot be also sustained.
In the result, this Original Petition stands allowed, setting aside Exts.P8 and P11 and the court below is directed to pass orders afresh on E.A.No.173/2018, affording reasonable opportunity of hearing to both sides, in accordance with law, as expeditiously as possible and at any rate within one month from the date of receipt/production of a copy of this judgment.
Sd/-
B.SUDHEENDRA KUMAR JUDGE RK/23.01.2020 OP(C).No.52 OF 2020 APPENDIX PETITIONER’S/S EXHIBITS:
EXHIBIT P1 THE TRUE PHOTOSTAT COPY OF THE DECREE DATED 21.06.2018 IN O.S.NO.543/2010 OF THE HON’BE MUNSIFFS COURT, KOTTARAKKARA
EXHIBIT P2 THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 20.11.1997 IN O.S.NO.119/1993 OF THE HON’BLE SUB COURT, KOTTARAKKARA
EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 06.10.2010 OF THE HON’BLE HIGH COURT OF KERALA IN A.S.NO.308/1998
EXHIBIT P4 THE TRUE PHOTOSTAT COPY OF THE COMMON JUDGMENT DATED 29.11.2013 IN CMA NO.14/2011 AND CMA NO.15/2011 OF THE HON’BLE SUB COURT, KOTTARAKKARA
EXHIBIT P5 THE TRUE PHOTOSTAT COPY OF THE COMMON JUDGMENT DATED 01.02.2016 OF THE HON’BLE HIGH COURT OF KERALA IN OP(C)
EXHIBIT P6 THE TRUE PHOTO COPY OF THE EXECUTION PETITION FILED AS EP NO.55/2018 IN OS NO.543/2010 BEFORE THE HON’BE MUNSIFFS COURT, KOTTAAKKARA BY THE PETITIONER/DECREE HOLDER
EXHIBIT P7 THE TRUE PHOTO COPY OF THE PETITION E.A.NO.173/2018 IN EP NO.55/2018 IN OS NO.543/2020 BEFORE THE HON’BLE MUNSIFFS COURT, KOTTARAKKARA FILED BY THE PETITIONER HEREIN-THE DECREE HOLDER, SEEKING TO ISSUE DIRECTIONS TO THE POLICE VIZ RESPONDENTS 2 & 3 HEREIN
EXHIBIT P8 THE TRUE PHOTO COPY OF THE ORDER DT 15.11.2019 IN E.A.NO.173/2018 IN EP NO.55/2018 IN OS NO.543/2010 OF THE HON’BLE MUNSIFF’S COURT, KOTTARAKKARA OP(C).No.52 OF 2020 E.A.NO.11/2019 IN EP NO.55/2018 IN OS NO.543/2010 BEFORE THE HON’BLE MUNSIFFS COURT KOTARAKKARA BY THE 1ST RESPONDENT HEREIN SEEKING STAY OF EXHIBIT P6 EXECUTION PROCEEDINGS
EXHIBIT P10 THE TRUE PHOTO COPY OF THE OBJECTIONS FILED BY THE PETITIONER HEREIN AS RESPONDENT/ DECREE HOLDER IN EA.NO.11/2019 IN EP NO.55/2018 IN OS NO.543/2010 BEFORE THE HON’BLE MUNSIFFS COURT, KOTTARAKKARA
EXHIBIT P11 THE TRUE PHOTOCOPY OF THE ORDER DT 15.11.2019 IN EA. NO.11/2019 IN EP NO.55/2018 IN OS NO.543/2010 OF THE HON’BLE MUNSIFFS COURT, KOTTARAKKARA
RESPONDENT’S/S EXHIBITS:NIL