IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 WP(C).No. 3747 of 2007(U) ------------------------------------------- EP.1/1995 IN OS.406/1992 of MUNSIFF COURT, NEDUMANGAD .................... PETITIONERS: 1. KUTTAN KURUP SREEDHARA PILLAI, PARAYANKARIKKAKATHIL-KONIL PUTHEN VEEDU, VAMANAPURAM VILLAGE, ANAKUKDI MURI, TRIVANDRUM -DO- 2. KUTTAN KURUP SURENDRAN PILLAI OF DO. DO. BY ADV. SRI.K.B.PRADEEP RESPONDENTS: 1. BHAGEERTHY AMMA SARASWATHY AMMA, PARAYANKARIKKAKAM, VAMANAPURAM VILLAGE, ANAKUDI MURI, TRIVANDRUM. 2. SARASWATHY AMMA LEELAMMA OF DO. DO. 3. SARASWATHY AMMA SOBHANA OF DO. DO. 4. S. VIMALAMMA OF DO. DO. 5. S. VIJAYAN NAIR OF DO. DO. 6. S. SASIDHARAN NAIR OF DO. DO. 7. S. MOHANAN NAIR OF DO. DO. 8. BHAVANI AMMA OMANA AMMA OF DO. DO. 9. KUTTAN KURUP KRISHNANKUTTY NAIR OF DO. DO. ADV. SRI.K.S.MANU (PUNUKKONNOOR) FOR R8, 9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.3747 of 2007 U -------------------------- JUDGMENT Counsel for the petitioners/decree holders submits that in execution of the decree in O.S.No. 406/92 on the file of the Munsiff's Court, Nedumangadu vide E.P.No.1/95, a boundary wall was put up; that the respondents/judgment debtors raised an objection that the said boundary wall was not put up along the I-J line shown in the plan (Exhibit C1(a) appended to the decree; that thereupon the execution court, on E.A.No.265/05 filed by the petitioners/decree holders, deputed Advocate Sri.B.Ramesan Nair as the Commissioner to visit the property and submit a report and plan with the assistance of Sri.B.Sadasivan, a retired Surveyor; that accordingly, the Commissioner visited the property and submitted Exhibit P5 report and plan to the effect that boundary wall was put up in execution, but not on the I-J line; that petitioners/decree holders filed Exhibit P6 WPC 3747/07 2 objection to Exhibit P5 commission report and plan and filed Exhibit P7 application requesting for boundary being put up along the I-J line shown in Exhibit C1(a) plan appended to the decree in the suit, as the boundary wall put up had already been demolished; that again, Advocate Sri.Ramesan Nair was appointed as the Commissioner vide Exhibit P7 (a) order to help the Amin to put up the boundary with the help of Sri.Ravikumar, a retired Surveyor; that on their inspection, it was found that the boundary wall which had been put up earlier was precisely on the I-J line and Exhibit P5 report and plan submitted by them reporting that the boundary is not put up along the I-J line was wrong, but, instead of rectifying the wrong report and plan, the Commissioner was insisting the petitioners/ decree holders to settle the matter with the respondents/judgment debtors and did not file any fresh commission report till now before the execution court and that the execution court also WPC 3747/07 3 is not taking any steps to make any progress to have the decree in the suit satisfied and has even rejected E.A.No.434/06, filed to change the Commissioner and Surveyor, vide Exhibit P9 order. 2. Despite service of notice on the judgment debtors, who are respondents 1 to 7 herein, they have not entered appearance before this Court and have not engaged any Lawyer till this date. 3. In the circumstances, I direct the court below, namely, the Munsiff, Nedumangadu, to see to it that the decree in O.S.No.406/92, sought to be got executed by the petitioners/decree holders filing E.P.No.1/95, is executed expeditiously and the boundary put up as prayed for in the execution petition in compliance with Exhibit C1(a) plan appended to the decree by deputing an Amin, with the assistance of Advocate Commissioner Sri.Ramesan Nair and retired Surveyor Sri.Ravikumar, appointed vide Exhibit P7(a) order dated 8.11.2006 on E.A.No.363/06. The court below shall also probe WPC 3747/07 4 into the question as to why the Amin deputed to put up the boundary as per the aforesaid order dated 8.11.2006 has not put up the boundary and submitted the report and as to why the Commissioner also did not submit any report and as to whether the Commissioner and the Surveyor have withdrawn the bata deposited pursuant to the order dated 8.11.2006. Counsel for the petitioners/decree holders expresses doubt as to whether the Commissioner will co-operate, as instead of assisting the Amin to execute the decree, he was persuading the parties to arrive at a settlement, as he happened to file a report probably on having been mislead by the Surveyor reporting that the boundary put up was not on the I-J line shown in Exhibit C1(a) plan appended to the decree. In the event of the Commissioner Sri.Ramesan Nair expressing any difficulty in executing the decree, the court below shall be at liberty to appoint another competent Commissioner to execute the work WPC 3747/07 5 of assisting the Amin in putting up the boundary assisted by a competent retired Surveyor and in that event if at all the earlier Commissioner and the retired Surveyor appointed vide Exhibit P7(a) order, had already received the bata, they shall be caused to re-deposit the amount in court. However, executing the decree by deputing another Commissioner and retired Surveyor need not await re-deposit of the bata if any received by the earlier Commissioner and retired Surveyor and the petitioners/decree holders shall deposit the required bata that may be ordered by the execution court to expedite the execution. To that extent, Exhibit P9 order shall stand set aside. The writ petition is disposed of with the above directions. 22nd January, 2009 (K.P.Balachandran, Judge) tkv