ABOOSA Vs. ASHRAF

JUDGEMENT

(1.) The claim petitioners in E.A.No. 208/2003 on the file of the Munsiff Court, Varkala, who were the petitioners in I.A.No. 1642/2004, the petition to condone the delay, and the appellants in an unnumbered appeal which had accompanied I.A.No. 1642/2004, are the appellants before this Court.

(2.) The facts revealed from the records are that, the appellants herein, are the wife and children of the 2nd respondent. Original Suit No. 210/1984 was filed before the Munsiff Court, Varkala, for a permanent prohibitory injunction restraining the defendants therein, from trespassing into the plaint schedule property. It was decreed. However, the defendants, judgment debtors, trespassed into the plaint schedule property and the building therein. The decree holders in O.S.No. 210/1984 filed O.S.197/1990 before the same court, praying to recover the possession of the property scheduled therein. The same was decreed granting the prayer of recovery of possession as could be seen from the judgment and decree dated 4.12.1991. It was challenged in A.S.No. 90/1992 before the Sub Court, Attingal. That was also dismissed. The decree holders in O.S.No. 197/1990 filed E.P.No. 80/1992 before the Munsiff Court, Varkala. The execution court ordered delivery of the execution schedule property and an Amin was deputed for effecting delivery. But the Amin returned the order of the execution court, as the appellants herein had obstructed the delivery, on the plea that the obstructors had got an independent right over the execution schedule property from 1984 onwards. Accordingly, the appellants herein had filed E.A.No. 208/2003 under Order XXI Rule 97(1) of the Code of Civil Procedure. The execution court as per the order, dated 4.9.2003, dismissed the claim petition, holding that the 1st appellant, claim petitioner, has got no independent right over the execution schedule property and the building therein, that the claim petition had been filed at the instigation of the 2nd judgment debtor, the husband of the 1st appellant and father of the other appellants, and that there is no bona fide in the claim petition.

(3.) The order of the Munsiff Court, Varkala was challenged before the Sub Court, Attingal, and the appeal was unnumbered. Meanwhile, W.P.(C).No. 22209/2004 was preferred before this Court. However, the records show that the same was withdrawn on 25.11.2004, without any prejudice to the right of the writ petitioners to seek their relief before the appropriate forum. Thereafter, the appellants filed W.P.(C).No. 34446/2004 before this Court. Disposing the same on 5.1.2005, the learned Single Judge directed the Sub Court, Attingal, to issue a certified copy of the judgment in the unnumbered appeal, sustaining the order passed by the learned Single Judge on 3.12.2004, in I.A.No. 16718/2004, setting aside the delivery of the execution schedule building, and directing redelivery, till the disposal of the time granted by the learned Single Judge for taking further remedial steps, within 15 days from the date of the receipt of the copy of the judgment of the unnumbered appeal.