ABDULLA KUNHI Vs. T.A. ILLYAS

JUDGEMENT

(1.) The Review petition is filed by respondents 4 and 5 in W.P.(C) No. 23326 of 2012 seeking to review the judgment of a Division Bench of this Court in the writ petition dated 1st October, 2014, whereby it was held that a perusal of the records clearly indicates that the first respondent/writ petitioner had obtained a decree which had become final after 3 stages of litigation by a judgment dated 21.10.2009 of this Court in R.S.A. No. 797 of 2009.

(2.) It was also noted in the judgment tha, the suit was filed in the year 1996 and despite the decree passed and executed, if the defendants again trespassed into the property, the police is bound to interfere in the matter and restore possession of the property to the writ petitioner; that the writ petitioner has obtained a decree of civil court and after delivery of property in execution proceedings, the respondents have trespassed into the said property which is in gross violation of the decree passed, and that persons who do not obey the judgment of the civil court cannot insist that the writ petitioner should again be driven to the civil court for recovery of possession of his property, and accordingly, the writ petition was allowed and respondents 2 and 3 namely the Superintendent of Police, Kasaragod and the Station House Officer, Kumbla Police Station respectively, were directed to provide adequate police protection to the first respondent/writ petitioner to restore possession of the building in terms of Ext. P4 proceedings in execution, and further directed to ensure maintenance of law and order situation, and if necessary by evicting the Review Petitioners and the 6th respondent therein by force.

(3.) In the Review Petition, the basic contention advanced by the petitioner is that the judgment is contrary to law, materially irregular and unsustainable in the facts and circumstances of the case, supported by the contention that the civil court decree was obtained by playing fraud by the writ petitioner; that their defence before the civil court was ineffective; and that the grant of police protection would deny them the basic principles of natural justice on being heard before the execution court in a proceeding under Order XXI Rules 97 to 103 of the Code of Civil Procedure. It is further contended that only symbolic possession of the property was taken over in the instant case, since some political leaders and social activists interfered when attempting to physically evict the Review Petitioners. It is also contended that the question of possession is a matter to be adjudicated by the Execution Court under Section 47 of the CPC, and in the light of the provisions contained under Order XXI Rule 35 and Rules 97 to 100, especially after the 1976 amendment of the Code of Civil Procedure.