IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 OP(C).No. 2326 of 2011(O) ------------------------- AGAINST THE ORDER IN EA 571/2010 IN OS.968/2001 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... PETITIONERS: ------------------------- 1. SIVARAMAN, H/O. SANTHAMMA, THENAMTHARAYIL, CHARAMANGALAM MURI, KANJIKUZHY VILLAGE,ALAPPUZHA. 2. KUMARI, D/O. SANTHAMMA, OF ..-DO-..DO... 3. SAHADEVAN, S/O. SANTHAMMA, OF..-DO-..DO... 4. AMBIKA, D/O. SANTHAMMA, -OF...DO-..DO... BY ADVS. SRI.T.JAYAKRISHNAN, SMT.NIDHI BALACHANDRAN. RESPONDENT(S): --------------------------- 1. SARALA, W/O. DIVAKARAN, THENAMTHARAYIL, PALACKAL VELIYIL, CHARAMANGALAM MURI, KANJIKKUZHY VILLAGE, ALAPPUZHA DISTRICT-688 525. 2. ASHOKAN, S/O. DINAKARAN, THENAMTHARAYIL, LAYALANALAYAM, CHARAMANGALAM MURI, KANJIKKUZHY VILLAGE, ALAPPUZHA DISTRICT-688 525. 3. MOLY BHADRASENAN, VADAKKEPARAMBIL, CHARAMANGALAM MURI, KANJIKKUZHY-688 525. Kss ..2/- ..2.... OPC.NO.2326/2011 O 4. BAIJU, S/O. DINAKARAN, SRUTHIBHAVAN, CHARAMANGALAM MURI, KANJIKKUZHY VILLAGE, ALAPPUZHA -688 525. 5. ULLAS, S/O. DINAKARAN, THENAMTHARAYIL, PALACKAL VELIYIL, CHARAMANGALAM MURI, KANJIKKUZHY VILLAGE, ALAPPUZHA -688 525. 6. SAJEEVAN, S/O. DINAKARAN, THENAMTHARAYIL, PALACKAL VELIYIL, CHARAMANGALAM MURI, KANJIKKUZHY VILLAGE, ALAPPUZHA -688 525. 7. JYOTHI MANOJ, KRIPA, VAYALAR MURI, VAYALAR EAST VILLAGE, ALAPPUZHA - 688 525. 8. THILAKAN, S/O. GOPALAKRISHNAN, THENAMTHARAYIL, CHARAMANGALAM MURI, KANJIKUZHY VILLAGE, ALAPPUZHA - 688 525. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2326/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER PASSED IN CRP.298/2010 DTD.22/10/2010. P2: COPY OF THE COMMISSION APPLICATION FILED BY THE RESPONDENTS AS EA 571/2010 DTD. 23/11/2010. P3: COPY OF THE OBJECTION FILED BY THE PETITIONERS/DECREE HOLDERS TO THE EXHIBIT P2 COMMISSION APPLICATION. P4: COPY OF THE ORDER PASSED BY THE MUNSIFFS COURT, ALAPPUZHA IN E.A.NO.571/2010 IN E.P.NO.414/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2326 of 2011 -------------------------------------- Dated this the 20th day of July, 2011. JUDGMENT Petitioners are additional decree holders in E.P.No.414 of 2008 in O.S.No.968 of 2001 of the court of learned Munsiff, Alappuzha. Learned Munsiff granted a decree for prohibitory injunction against commission of waste, demolition of boundary of the suit property, etc. Petitioners filed E.P.No.414 of 2008 with a prayer to appoint an Advocate Commissioner or a court officer to measure the suit property and identify the boundary since according to them the existing boundary was demolished. Petitioners wanted a fence to be constructed on the boundary thus identified. Executing court allowed E.A.No.555 of 2009 filed by petitioners. That order was challenged in this Court in C.R.P.No.298 of 2010. This Court by Ext.P1, order refused to interfere but observed in paragraph 3 of the order that to allay the apprehension of respondents/judgment debtors that in the process of identifying the decree schedule property, property belonging to them may be encroached it is appropriate that the Advocate Commissioner gets assistance of a Surveyor to identify the property and then, executing court could grant reliefs to the petitioners/decree holders. Pursuant to that order, respondents filed Ext.P2, application for appointment of an Advocate Commissioner with the assistance of a Surveyor to identify the property as per A schedule of gift deed No.1431 of 1978 (allotted to the husband of the first respondent) and B schedule allotted to the predecessor-in-interest of OP(C) No.2326/2011 2 petitioners. The executing court allowed that application by Ext.P4, order which is under challenge. It is contended by learned counsel that by the said order executing court has gone behind the decree in that some other property is ordered to be identified and the decree schedule property. It is contended that before the trial court there was a survey plan based on which decree was granted. 2. It is true that in Ext.P1, order certain directions are issued by this Court. The question whether the report and plan that may be submitted by the Advocate Commissioner pursuant to Ext.P4, order is in accordance with the said directions or, the decree itself is a matter which the executing court is yet to decide. Now the Advocate Commissioner is appointed to identify the property in the way above stated. If petitioners are desirous of getting the decree schedule property identified in the way they contend, it is open to them to file a work memo in the executing court to give direction to the Advocate Commissioner to measure the property in that way also. If any such work memo is filed, executing court shall issue appropriate direction to the Advocate Commissioner in that regard. Since such opportunity is available to the petitioners, there is no reason to interfere with Ext.P4, order. But, the question as to how the property has to be identified and/or, the boundary fixed and which of the report or plan submitted by the Advocate Commissioner could be accepted are matters which the executing court has to decide having regard to all relevant aspects of the matter. OP(C) No.2326/2011 3 Resultantly this Original Petition is disposed of in the following lines: i. It is made clear that it is open to the petitioners to file work memo before the executing court so that the decree schedule property in the way they contend could also be identified and a report and separate plan could be obtained through the Advocate Commissioner and the Surveyor. ii. Question as to in what manner the property has to be identified and boundary fixed shall be decided by the executing court with reference to the materials brought on record and all other relevant facts and circumstances. THOMAS P.JOSEPH, Judge. cks