Sosamma Pathrose vs Surendran

A. Badharudeen, J

In this Original Petition filed under Article 227 of the Constitution of India, the petitioner, who initially filed obstruction petition and failed to get order on merits, since the learned Sub Judge found that the execution petition is not maintainable, filed a petition to review the order since the finding of the learned Sub Judge holding the view that the E.P is not executable was set aside by this Court as per order in C.R.P.No.227/2021 dated 13.09.2021. Thereafter, the auction purchasers filed O.P(C).No.307/2022 and this Court passed the following orders:

“Therefore, this original petition is allowed and the learned Sub Judge is directed to order delivery of the property without police aid and oversee the process of delivery. If delivery is possible without any obstruction, the same shall be effected. At the same time, if anybody obstructs and files petition, as provided under Order 21, then, that shall be addressed and necessary orders, thereafter, shall be passed in accordance with law and proceed further. The learned Sub Judge is directed to expedite the process of delivery etc. within a period of three weeks from the date of production or receipt of a copy of this judgment in view of the fact tha the suit is of the year 2012.

It is made clear that the power of the learned Sub Judge to give Police aid for effecting delivery is left open to be exercised appropriately in appropriate time.”

Here the materials would go to show that the obstruction petitioner, though raised challenge against the sale deed whereupon the defendants herein obtained title and in consequence thereof the court executed sale deed in favour of the auction purchaser, it appears that even the previous owner also admitted the status of the petitioner as a tenant. R.C.P filed was dismissed for non prosecution. In view of the matter, I make it clear that a physical delivery shall be only in accordance with law by filing a petition under the Rent Control Act in the given facts of this case.

Therefore, the Original Petition is allowed in part, with a direction to the execution court to go on with symbolic delivery and delegate the persons, who obtained symbolic delivery to seek eviction as per law otherwise. It is made clear that the execution court can consider Ext.P8 Review Petition also in accordance with law. Therefore, the physical delivery posted to today (29.03.2022) shall stand deferred till a final decision is taken in Ext.P8.

However, the symbolic delivery can go on.