Disposed

Avarachan v. Annamma Varghese

Kerala HC31 Aug 2016OP(C)/2161/2016

Case brief

AI extract

What is this about?

In an Article 227 petition challenging a lower court order that posted an execution application for evidence, the High Court at Ernakulam directed the Subordinate court to expedite disposal of the execution petition and the stay application, ruling that the substantive issue of maintainability should be decided by the lower court with full evidence before the High Court reviews it.

What did the court decide?

Directed the Munsiff, Aluva, to expedite disposal of E.A. No.85/2016 within three months after giving opportunity to parties to adduce evidence and thereafter expedite disposal of E.P. No.83/2015.

Avarachan Vs Annamma Varghese — Execution and Attachment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938

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OP(C).No. 2161 of 2016 (O)

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PETITIONER : -

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---------------------AVARACHAN, S/O PAULOSE, AGED 63 YEARS, THURUTHISSERI KARA, NEDUMBASSERRY VILLAGE, ALUVA.

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BY ADVS.SRI.V.V.ASOKAN (SR.) SRI.K.I.MAYANKUTTY MATHER SRI.JOSE JOSEPH (CHEMPLAYIL)

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RESPONDENTS : -

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ANNAMMA VARGHESE, KACHAPPILLY HOUSE, THURUTHI SHERI KARA, NEDUMBASSERY VILLAGE, ALUVA-683101.

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SUJA, D/O VARGHESE, KACHAPPILLY HOUSE, THURUTHI SHERI KARA, NEDUMBASSERY VILLAGE, ALUVA-683101.

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ELDHO, S/O VARGHESE, KACHAPPILLY HOUSE, THURUTHI SHERI KARA, NEDUMBASSERY VILLAGE, ALUVA-683101.

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ELIYA DEVASSY, KUNNAPPALLY HOUSE, THURUTHI SHERI KARA, NEDUMBASSERY VILLAGE, ALUVA-683101.

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OUSEPH DEVASSY, KUNNAPPALLY HOUSE, MAIKKAD- THURUTHI SHERI KARA, NEDUMBASSERY VILLAGE, ALUVA-683101.

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MARIYAMMA THOMAS, MADATHIL HOUSE, MUTHUKAD, KOLLARA STOP, KUNNUKARA P.O, PIN-683578.

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THRESSIYA VARKEY, PATTARUMADAM HOUSE, KONDOTHRA, MAIKADU P.O., PIN - 683 589.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2161 of 2016 (O)

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APPENDIX

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PETITIONER'S EXHIBITS : -

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EXHIBIT P1 : TRUE COPY OF THE DECREE DRAWN BY THE SUB COURT, PARAVUR IN A.S. 117/2014 DATED 25/2/2015.

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EXHIBIT P2 : TRUE COPY OF THE JUDGMENT IN R.S.A 1319/2015 OF THIS HON'BLE COURT DATED 9/2/2016.

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EXHIBIT P3 : TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 24/2/2012.

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EXHIBIT P3(a) : TRUE COPY OF THE PLAN DRAWN BY THE ADVOCATE COMMISSIONER DATED 24/2/2012.

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EXHIBIT P4 : TRUE COPY OF THE E.P NO 83 OF 2015 FILED BY THE PETITIONER DATED 10/8/2015.

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EXHIBIT P5 : TRUE COPY OF THE GIFT DEED NO. 3785/1986 OF CHENGAMANAD SRO DATED 26/11/1986.

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EXHIBIT P6 : TRUE COPY OF THE CLAIM PETITION FIELD AS E.A.NO. 85/2016, MUNSIFF COURT, ALUVA DATED 5/8/2016.

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EXHIBIT P7 : TRUE COPY OF THE STAY APPLICATION E.A.NO.86/2016 DATED 5/8/2016.

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EXHIBIT P7(a) : TRUE COPY OF THE COMMISSION APPLICATION IN E.A.NO.87/2016 DATED 5/8/2016.

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EXHIBIT P8 : TRUE COPY OF THE PLAINT IN O.S. NO.23/2016 MUNSIFF COURT, ALUVA DATED 14/1/2016.

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EXHIBIT P9 : TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, ALUVA IN EA NO. 85/2016 DATED 11/8/2016.

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RESPONDENTS' EXHIBITS : - NIL.

// TRUE COPY //

P.A. TO JUDGE

DMR/-

K. RAMAKRISHNAN,J.

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O.P. (Civil) No. 2161 of 2016

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Dated this the 31^st day of August, 2016

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JUDGMENT

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This is an application filed by the petitioner challenging Exhibit P9 order in E.A. No.85/2016 in E.P. No.83/15 in O.S. No.8/2010 on the file of the Munsiff Court, Aluva and also for an alternate prayer for disposal of the E.P. in a time bound manner under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner is the decree holder in E.P. No.83/15 which was filed for execution of the decree in O.S. No.8/2010 of the same Court. The suit was filed for fixation of boundary and for recovery of plaint B schedule property and for injunction. The suit was earlier dismissed and thereafter an appeal has been filed as A.S. No.117/2014 and the Appellate Court had allowed the appeal and decreed the suit, against which R.S.A. No.1319/2015 was filed by respondents 2 and 3 which was dismissed by this Court. It is thereafter that the execution

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O.P. (Civil) No. 2161 of 2016

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petition has been filed. Original first judgment debtor died and original judgment debtors 2 to 4 were recorded and additional respondents 5 to 7 were impleaded as legal heirs of the first judgment debtor in the Court below. The sixth respondent filed E.A. No.85/2016 obstructing the delivery and though the petitioner filed detailed objection challenging the maintainability of the same, the Court below had posted the case for evidence by Exhibit P9 order which is under challenge under Article 227 of Constitution of India and a prayer also made for early disposal of the execution petition.

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Heard Sri. V.V. Asokan, Senior counsel appearing for the petitioner.

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Considering the nature of relief claimed and also the short question to be considered, this Court felt that the petition can be disposed of at the admission stage itself. The counsel for the petitioner submitted that as per the documents produced, the sixth respondent has no locus standi to file an application and those aspects were considered at the trial stage and it is thereafter that the decree has been passed by the Appellate Court which was confirmed by this Court. So it is only an attempt to protract

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O.P. (Civil) No. 2161 of 2016

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the proceedings that such an application has been filed.

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Further, the objections were not properly considered also.

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It is true that when detailed objections have been filed, there is a duty cast on the Courts to consider the objections as to whether the preliminary objection raised regarding the maintainability is proper or not. But, the Court below had posted the application stating that evidence is necessary and posted for evidence. On going through the allegations made in the petition itself, this Court feels that some evidence is required for that purpose. Further, when an application has been filed obstructing the delivery, detailed enquiry will have to be conducted by the Court below as separate suit is barred on that aspect. Under such circumstances, in order to avoid delay in disposal of the execution petition by setting aside the order and directing the Court below to pass an order on the maintainability question, if that goes against, either party can come to this Court again, this Court feels that the petition can be disposed of directing the Court below to dispose of the E.A and E.P. in a time bound manner. So the petition is disposed of as follows:

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O.P. (Civil) No. 2161 of 2016

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The Munsiff, Aluva, is directed to expedite disposal of E.A.No.85/2016 in E.P. No.83/2015 in O.S. No.8/2010 as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment after giving opportunity to parties to adduce evidence and thereafter expedite disposal of E.P. No.83/2015 at the earliest. The Registry is directed to communicate this judgment to the Court below at the earliest.

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With the above direction/observation, the petition is

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disposed of.

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K. RAMAKRISHNAN JUDGE

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DMR/-

Avarachan v. Annamma Varghese

Case brief

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Avarachan v. Annamma Varghese

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