VIMALA NETTO Vs. MELLISON ANNIE RUDOLF NETTO

JUDGEMENT

(1.) JUDGMENT Debtor No.5 in E.P No.82/2005 in O.S No.15/1998 of the court of learned Addl. Sub Judge - II, Thiruvananthapuram is the petitioner. The prayer in this petition is to direct learned Sub Judge to issue copy of order allowing I.A No.7255/2010 and copies of I.A Nos.7255/2010 and 7256/2010 in O.S No.15/1998 as prayed for in application No.5369/2010 and to keep in abeyance delivery proceedings in E.P.No.82/2005 to enable petitioner challenge the order allowing amendment and correction of decree vide I.A No.7255/2010.

(2.) IT is contended that the Will and the plaint did not refer to the 1.03 acres in R.S. 82/2006 in Menamkulam Village (in block No.10) belonging to the petitioner and hence petitioner did not contest the suit. In execution of the decree, petitioner contended that the property is not identifiable and applied for the issue of a commission. That application was dismissed and the Village Officer was directed to assist the Amin to effect delivery of property. Later, the order on the application for issue of commission was reviewed by the executing court and petitioner deposited bata. At that stage, counsel for respondent No.1- decree holder submitted in the executing court that decree schedule was amended (incorporating property over which petitioner claims right and referred to above). IT is the case of petitioner that he was not given notice of the application for amendment and that he did not contest the suit as neither the Will nor the plaint schedule as originally filed contained property over which petitioner is claiming title.