APPUKUTTAN Vs. SASIKALA

JUDGEMENT

(1.) THIS Original Petition is in challenge of the order passed by learned Sub Judge, Palakkad on 25.09.2010 ordering delivery of property on or before 23.10.2010 and to report on 25.10.2010. Final decree for partition was passed in O.S.No.6 of the court of learned Sub Judge on 09.07.2009 as per which respondent Nos.1 to 3 are entitled to share in the suit property along with defendant No.3 and others. While so an agreement was allegedly executed between petitioner-defendant No.3 and respondent Nos.1 to 3 on 26.06.2008 as per which the latter agreed to transfer their share as per the final decree to the petitioner for consideration stated therein and certain amount was also allegedly paid to respondent Nos.1 to 3 by way of advance sale consideration. Final decree was passed on 09.07.2009. Pursuant to the final decree respondent Nos.1 to 3 filed E.P.No.95 of 2010 and that was posted on 25.09.2010 for appearance of petitioner. That day petitioner sought time to prefer counter but learned Sub Judge passed the impugned order as stated above (copy of the order is not produced herein but gist of the order is extracted in paragraph 6 of the Original Petition). Learned counsel contends that pursuant to Ext.P2, agreement since petitioner was ready and willing to perform his part of the agreement and respondent Nos.1 to 3 did not do so he has filed O.S.No.552 of 2010 in the court of learned Sub Judge, Palakkad (Ext.P5 is the plaint). Petitioner has valid contentions to be raised in the execution petition but he was not given an opportunity. Instead, on the same day execution petition was posted for appearance of petitioner learned Sub Judge has passed the impugned order. If before decision in O.S. No.552 of 2010 share of respondent Nos.1 to 3 in the property is delivered over to them, petitioner will be put to irreparable loss and injury since petitioner and family are residing in the said property.

(2.) IT is seen from Exts.P2 and P5 that allegedly there was an agreement between petitioner and respondent Nos.1 to 3 as per which the latter agreed to assign their share in the suit property (in respect of which final decree was yet to be passed on the date of agreement) and received certain amount by way of advance sale consideration. In the circumstances I am inclined to grant time to the petitioner to seek appropriate relief in Ext.P5, suit. Hence delivery proceeding will stand in abeyance till 23.10.2010. In the meantime it will be open to the petitioner to approach the court where O.S. No.552 of 2010 is pending and seek appropriate relief if otherwise he is entitled to such relief as provided under law. Resultantly, Original Petition is disposed of directing learned Sub Judge, Palakkad to keep in abeyance delivery proceeding in E.P. No.95 of 2010 in O.S. No.6 of 2003 till 23.10.2010.