(2012) 235 KLR 778 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933 WPC.No. 21097 of 2010 (O) ------------------------- OS.435/2005 of MUNSIFF COURT, PUNALUR PETITIONER(S): ------------- C.PRASANNAKUMARI, VATTAPPADA, PLANCHERY P.O. PUNALUR FORM KISHOR BHAVAN PUNNALA, PIRAVANTHOOR VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): -------------- 1. C.SUDHAKARAN, P.W.D.CONTRACTOR, SWAPNA BHAVAN, BHARANIKKAVU WARD, PUNALUR MUNICIPALITY, PUNALUR-692 505. 2. SARALAMMA, W/O.SUDHAKARAN, 692 505. -DO- -DO- R,R1 & 2 BY SRI.BABU JOSEPH KURUVATHAZHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 21097/2010 APPENDIX PETITIONER'S EXHIBITS :
RESPONDENTS' EXHIBITS :
//TRUE COPY// PA TO JUDGE K.T.SANKARAN, J. -------------------------------- W.P.(C)No.21097 of 2010 -------------------------------- Dated this the 6th day of February, 2012 Head Note:- Execution - The rejection of the prayer to appoint a Commissioner on the ground that a detailed enquiry regarding fixation of boundary cannot be carried out in the execution proceedings, was improper. A Commissioner can be appointed at the execution stage to identify the plaint schedule property. Allowing the Petition the Court Held:- The trial court passed an ex-parte decree. The relief for fixation of boundary was also granted by the trial court. The decree in respect of that relief is clear and unambiguous. That the defendants did not appear and therefore, the trial court did not consider the merits of the case in detail is not a ground to hold that the decree cannot be executed. The gist of the decree is to fix the boundary on the eastern and southern sides of the plaint schedule property. In execution of the decree, the same has to be done by fixing the eastern and southern boundaries. This exercise could have been done by the trial court before granting the decree. However, the court did not insist on the plaintiff to do so, particularly, since the defendants were ex-parte. The plaintiff cannot be blamed for not taking out a Survey Commission at the trial stage in the absence of any written statement and in the absence of appearance by the defendants. If the view taken by the court below is accepted, that will be a bonus to the defendants for their non appearance. Whatever may the decree, it has to be executed, so long as the decree is executable. There is no case that the decree is void. There is also no case that the decree is inexecutable. If the decree can be executed by fixing the boundary after ascertaining the same as per a Survey Commission, the executing court is bound to execute the decree after following such a procedure. The court cannot reject the prayer for issuing a Commission on the ground that the same should have been done at the trial stage. The court having passed a decree for fixation of boundary even without there being a Commissioner's plan and report, the decree holder cannot be blamed for the lapses, if any, on the part of the court in not following the so called proper procedure. There is no ambiguity in the decree, as the court below erroneously thought. J U D G M E N T The decree holder in O.S.No.435 of 2005 on the file of the Munsiff's Court, Punalur, challenges the order dated 22nd July, 2009 in E.A.No.126 of 2007 in E.P.No.69 of 2007 as well as the order dated 23rd June, 2010 in E.A.No.132 of 2009. 2. The suit was filed for declaration of easement of necessity for access of the plaintiff to the plaint schedule property, fixation of eastern and southern boundaries of the plaint schedule property and to demolish the boundary illegally laid by the first defendant on the southern side of the plaint schedule property without the knowledge and consent of the plaintiff. The respondents are the defendants in the suit. The defendants remained ex-parte in the suit. The trial court passed a judgment and decree on 17th February, 2006 as prayed for. 3. E.P.No.69 of 2007 was filed by the petitioner to execute the decree. The prayer in the Execution Petition was to appoint a Survey Commission to fix the eastern and southern boundaries of the decree schedule property and to demolish the boundary illegally and wrongfully laid by the first defendant on the southern side of the property. E.A.No.126 of 2007 was filed by the decree holder to appoint a Survey Commission to survey and fix the eastern and southern boundaries of the property. 4. The court below passed Exhibit P8 order dated 22nd July 2009 rejecting the prayer for fixation of boundary. E.A.No.126 of 2007 was also dismissed. E.P. was posted for further steps with respect to reliefs B to E made therein. 5. The petitioner filed E.A.No.132 of 2009 to review the order dated 22nd July 2009. It was contended that the Execution Petition was maintainable in the light of the decision in P.N. Kurian Vs. Thulasidas, AIR 2003 Kerala 288. The court below dismissed E.A.No.132 of 2009 by Exhibit P10 order dated 23rd June, 2010. 6. The aforesaid orders dated 22.7.2009 and 23.6.2010 are under challenge in this Writ Petition. 7. As per Exhibit P8 order dated 22nd July, 2009, the court below rejected the prayer for execution on the following grounds : (a) What exactly is the boundary line over which the boundary is to be fixed is not clear from the decree. (b) a detailed enquiry regarding fixation of boundary cannot be carried out in the execution proceedings. 8. In Exhibit P10 order in E.A.No.132 of 2009, the court below held that though the decision in P.N. Kurian Vs. Thulasidas, AIR 2003 Kerala 288 was not referred to in Exhibit P8 order, the principles were taken into account by the court. 9. The trial court passed an ex-parte decree. The relief for fixation of boundary was also granted by the trial court. The decree in respect of that relief is clear and unambiguous. That the defendants did not appear and therefore, the trial court did not consider the merits of the case in detail is not a ground to hold that the decree cannot be executed. The gist of the decree is to fix the boundary on the eastern and southern sides of the plaint schedule property. In execution of the decree, the same has to be done by fixing the eastern and southern boundaries. This exercise could have been done by the trial court before granting the decree. However, the court did not insist on the plaintiff to do so, particularly, since the defendants were ex-parte. The plaintiff cannot be blamed for not taking out a Survey Commission at the trial stage in the absence of any written statement and in the absence of appearance by the defendants. If the view taken by the court below is accepted, that will be a bonus to the defendants for their non appearance. Whatever may the decree, it has to be executed, so long as the decree is executable. There is no case that the decree is void. There is also no case that the decree is inexecutable. If the decree can be executed by fixing the boundary after ascertaining the same as per a Survey Commission, the executing court is bound to execute the decree after following such a procedure. The court cannot reject the prayer for issuing a Commission on the ground that the same should have been done at the trial stage. The court having passed a decree for fixation of boundary even without there being a Commissioner's plan and report, the decree holder cannot be blamed for the lapses, if any, on the part of the court in not following the so called proper procedure. There is no ambiguity in the decree, as the court below erroneously thought. 10. The rejection of the prayer to appoint a Commissioner on the ground that a detailed enquiry regarding fixation of boundary cannot be carried out in the execution proceedings, was improper. In P.N. Kurian Vs. Thulasidas, AIR 2003 Kerala 288, it was held that a Commissioner can be appointed at the execution stage to identify the plaint schedule property. In that case also, the decree was an ex-parte decree. In the Execution Petition, the decree holder prayed for measuring out the plaint schedule property and for effecting delivery of possession. The judgment debtors opposed the application on the plea that such an exercise could not be made in the execution proceedings as no plan was attached to the decree. It was contended that identification of the property could not be made in the execution proceedings. The contentions raised by the judgment debtors were negatived by this Court in P.N. Kurian's case. In P.N. Kurian Vs. Thulasidas, AIR 2003 Kerala 288, the decisions in Smt.Lalmuni Devi vs. Shiv Shankar Tiwary, AIR 1980 Patna 184, Madhukar Trimbak Gore vs. Vasant Ramkrishna Kolhatkar, AIR 1983 Bombay 277, Kassim Beevi vs. Meeranchi Mytheen Beevi, AIR 1987 Kerala 226 and Chacko Geevarghese vs. State of Kerala, AIR 1982 Kerala 333 were relied on. The court below erred in dismissing the application for execution in so far as it relates to the prayer for fixation of boundaries. The court below also erred in dismissing the application for appointing a Commissioner. The orders impugned are without jurisdiction, warranting interference under Article 227 of the Constitution of India. Accordingly, Exhibits P8 and P10 orders dated 22.7.2009 and 23.6.2010 are set aside. The executing court shall consider the matter afresh and pass appropriate orders. K.T.SANKARAN JUDGE csl |
