Prakashan v. Koroth Prabhakaran and others (W.A. 1338 of 2022)

W.A.1338/2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944** **WA NO. 1338 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 10351/2022 OF HIGH COURT OF KERALA** ## **APPELLANT/RESPONDENT NO.4:** PRAKASHAN, AGED 38 YEARS, S/O ACHUTHAN, RESIDING AT THILLANKERI AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT, , PIN - 670702 BY ADV R.SURENDRAN ## **RESPONDENTS/PETITIONERS & RESPONDENTS NOS.1 TO 3 & 5:** 1 KOROTH PRABHAKARAN, AGED 63 YEARS, S/O KELU, THILLANKERI AMSOM DESOM, P.O. ULIYIL, IRITTY TALUK, KANNUR DISTRICT, , PIN - 670702 2 KOROTH SREEDEVI, AGED 58 YEARS, D/O KELU, THILLANKERI AMSOM DESOM, P.O. ULIYIL, IRITTY TALUK, KANNUR DISTRICT, , PIN - 670702 3 KOROTH RADHA, AGED 50 YEARS, D/O KELU, THILLANKERI AMSOM DESOM, P.O. ULIYIL, IRITTY TALUK, KANNUR DISTRICT, , PIN - 670702 4 KOROTH SAROJINI, AGED 48 YEARS, D/O KELU, THILLANKERI AMSOM DESOM, P.O. ULIYIL, IRITTY TALUK, KANNUR DISTRICT, , PIN - 670702 5 KOROTH SREEDHARAN, AGED 46 YEARS, S/O KELU, THILLANKERI AMSOM DESOM, P.O. ULIYIL, IRITTY TALUK, KANNUR DISTRICT,, PIN - 670702 W.A.1338/2022 2 6 KOROTH VALSALAKUMARI, AGED 43 YEARS, D/O KELU, THILLANKERI AMSOM DESOM, P.O. ULIYIL, IRITTY TALUK, KANNUR DISTRICT,, PIN - 670702 7 KOROTH SREEMATHI, AGED 40 YEARS, D/O KELU, THILLANKERI AMSOM DESOM, P.O. ULIYIL, IRITTY TALUK, KANNUR DISTRICT, , PIN - 670702 8 THE COMMISSIONER OF POLICE, OFFICE OF THE COMMISSIONER OF POLICE, TALAP, KANNUR, KERALA, , PIN - 670002 9 THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, IRITTY, KANNUR,, PIN - 670703 10 THE STATION HOUSE OFFICER, MUZHAKKUNNU POLICE STATION, MALAYORA HIGHWAY, KAKKAYANGAD, KANNUR, KERALA - , PIN - 670703 11 GANGADHARAN, AGED 50 YEARS, S/O ACHUTHAN, RESIDING AT THILLANKERI AMSOM DESOM, IRITTY TALUK, KANNUR DISTRICT, , PIN - 670702 BY ADVS. ASHWIN SATHYANATH ## **OTHER PRESENT:** GOVERNMENT PLEADER SREEJITH.V.S- G.P THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.1338/2022 3 ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------W.A.No.1338 of 2022** **-------------------------------------Dated this the 30[th] day of September, 2022** ## **J U D G M E N T** ## Jayachandran, J. **1.** The judgment impugned affords police protection to the petitioners in W.P(C).No.10351 of 2022, in respect of their life and properties, against the threats posed by respondents 4 and 5. The aggrieved 4[th] respondent is the appellant. For the sake of convenience, the parties are referred to in their original status before the Writ Court. **2.** Petitioners (respondents 1 to 7 herein) trace their title to the subject properties by virtue of Ext.P4 final decree passed in O.S.No.168 of 1989 of the Additional Sub Court, Thalassery. By virtue of Ext.P7 delivery report and Ext.P8 delivery receipt, petitioners were put in possession of the subject W.A.1338/2022 **==> picture [7 x 9] intentionally omitted <==** properties. However, respondents 4 and 5 (appellant and respondent no.11 herein) illegally obstructed the petitioners from enjoying the property and posed threat to their life and property. Ext.P11 complaint preferred before the second respondent/Dy.S.P. evoked no response, wherefore, the petitioners approached the High Court under Article 226 of the Constitution, seeking police protection. **3.** The claim of respondents 4 and 5 is essentially premised on the argument that petitioners were put in possession of the properties by virtue of Ext.P7 delivery report and Ext.P8 delivery receipt, at a time when the execution of the final decree stood stayed by virtue of Ext.R4(a) order of the Additional District Court, Thalassery and therefore, illegal per se. The petitioners cannot therefore propound any valid claim based on Exts.P7 and P8 proceedings. Respondents 4 and 5 also contended that, they have not posed any threat to the petitioners life and their properties and hence, grant of police protection is not warranted at all. W.A.1338/2022 5 **4.** By the impugned judgment, the learned Single Judge found that the appeal, in which Ext.R4(a) order of stay was passed, was ultimately dismissed as per Ext.P5 judgment and that the interim order of stay merged with the final judgment. In as much as the appeal is dismissed, respondents 4 and 5 cannot base their contentions on the strength of Ext.R4(a) interim order of stay. Learned Single Judge also noticed that Ext.R4(a) order was passed on 17.08.2011, whereas, Ext.P7 and P8 proceedings were effected on 25.05.2012 and therefore, respondents 4 and 5 could have effectively resisted the delivery of the property to the petitioners on the strength of Ext.R4(a). Having failed to do so, they cannot obstruct the enjoyment of the property by the petitioners at this distance of time, harping on an interim order, which stands merged with the final judgment to the detriment of respondents 4 and 5. Learned Single Judge also found that the second appeal filed against Ext.P5 judgment is not still live, since the delay in preferring that appeal W.A.1338/2022 6 has not been condoned yet. **5.** Heard Sri. R.Surendran, learned counsel for the appellant and Sri.T.Krishnan Unni, learned Senior Counsel for the respondents. **6.** Having heard the learned counsel appearing on both sides and perused the records, we find no infirmity or illegality in the impugned judgment. The proposition that, if the proceedings in which stay was granted is ultimately dismissed, the interim order merges with the final judgment, wherefore, the order of the lower court revives is a settled proposition of law, as held by the Honourable Supreme Court in **State of U.P. Thr. Secretary and Others** v. **Prem Chopra [Civil Appeal No.2417 of 2022],** relied upon by the learned Single Judge. It was also correctly taken note by the learned Single Judge that the legal position would have been different, if the appeal is ultimately allowed, which is not the case in the given facts. **7** . One of the important contentions put forward by W.A.1338/2022 7 the learned Counsel for the appellant is that execution proceedings in Ext. P7 and P8 were initiated without notice to the appellant and R11 herein (R4 and R5 in the Writ Petition) and hence, they were not aware of the delivery of possession to the petitioners (R1 to R7 herein). Allegations of threat by the appellant and R11 was made just before filing the writ petition, which shows that the petitioners have kept the delivery proceedings under Ext.P6 to P18 a secret for the past 10 years, is the appellant's contention. We find little merit in this contention. Primarily, we see that dispensation of notice to the judgment debtor is a permissible course under Rule 22 of Order XXI, E.P having been filed within 2 years from the date of final decree. Secondly, we notice that if the appellant and R11 herein were in physical possession of the subject properties, they cannot be heard to contend that they were not aware of the delivery of the properties, vide Ext.P7 and P8. If the appellant and R11 herein were vigilant, they should have immediately approached the Execution Court, on the strength of Ext.R4(a) order of W.A.1338/2022 8 stay, challenging Ext.P7 and P8 proceedings, which they did not do. The delivery effected in 2012 was never challenged by the appellant and R11 herein at any time before 2019, when the appeal suit was dismissed. The appellant and R11 chose to sleep over their rights. The law protects the diligent and not the indolent. Respondents 4 and 5, who did precious little at the requisite time, are now attempting to assert their rights based on Ext.R4(a), at a time when Exts.R4(a) has no independent legs in law on account of its merger with the final judgment. The appeal is devoid of merits and the same is therefore hereby dismissed. ## **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN JUDGE** ``` Sbna/ ```