U. DAYABHANU Vs. SAVITHRI W/O RAMAKRISHNAN

JUDGEMENT

(1.) ONE of the judgment debtors in E.P. No. 47 of 2006 in O.S. No. 44 of 1973 of the court of learned Sub Judge, Tirur is the petitioner before me aggrieved by Ext.P3, order on E.A. No. 494 of 2010. Vide that E.A., petitioner wanted the executing court to stay further proceedings in execution until the question of title raised by petitioner in O.S. No. 196 of 2010 of the same court is finally settled. Executing court after referring to the background of the case and relevant circumstances has refused that request as per Ext.P3, order. Learned Counsel contends that property sought to be delivered over in execution of the decree is not the same as scheduled in the decree and that it takes in the property over which petitioner has absolute right and possession which is sought to be established in O.S. No. 196 of 2010.

(2.) THE suit was for partition initiated in the year 1973 and completing various steps and over coming various hurdles it has reached the stage of execution of the final decree. There were several rounds of Writ Petitions and other proceedings arising from the decisions in the case. The final decree was passed on 07.10.2003. Respondent was allotted plots marked M1 to M4 (both inclusive) in Ext.C5, plan which has been approved in final decree. Thereafter petitioner and his mother filed E.A. No. 327 and 328 of 2006 claiming that an item of property over which petitioner claims right is not included in the final decree. Those applications were allowed by the executing court which respondent challenged in W.P.(C) No. 33447 of 2007 before this Court. As per judgment dated 28.05.2008 Writ Petition was allowed and the executing court was directed to deliver plots marked M1 to M4 in Ext.C5, plan after identification of the property as shown in the plan. Thereafter there was another Writ Petition W.P.(C) No. 34844 of 2009 filed by respondent which this Court disposed of on 04.01.2010 directing the executing court to complete execution as ordered in the judgment dated 28.05.2008 (referred to supra) before closing of court for midsummer vacation. In the meantime petitioner filed W.P.(C) No. 23007 of 2006. That Writ Petition was disposed of by judgment dated 25.10.2006 observing that since petitioner's father (defendant No. 30) was not allotted any share in the preliminary decree, petitioner cannot challenge the final decree consequent to the death of defendant No. 30 on the grounds set forth in that Writ Petition. Executing court deputed the Amin to deliver the property. He reported some change in the amsom and desom of the properties described in the final decree schedule. Thereon executing court called for a report from the Tahsildar concerned who reported that the change was consequent to the re -organisation of Taluks. Executing court accordingly passed an order allowing respondent to amend the schedule of property which petitioner challenged in W.P.(C) No. 5068 of 2010 before this Court. That Writ Petition was disposed of vide judgment dated 30.06.2010 accepting the view of executing court based on report of the Tahsildar that there was no change in the identity of property but only that the amsom and desom changed on account of re -organisation of Taluks after final decree was passed. It is thereafter that petitioner filed E.A. No. 494 of 2010 seeking stay of further proceedings in execution claiming that the property which belonged to him is sought to be delivered over. That contention cannot stand in view of the decision in W.P.(C) No. 33447 of 2007 which specifically directed executing court to deliver plots marked M1 to M4 in Ext.C5, plan. Petitioner cannot lay hands on the said items. In the circumstances, executing court was justified in refusing to stay the execution proceedings. I do no find any infirmity in the order requiring interference.