IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 OP(C).No. 1275 of 2010(O) ------------------------------------- E.A.NO.693/2010 IN E.P.NO.18/2010, O.S.NO.1354/1999 OF PRINCIPAL MUNSIFF'S COURT, ERNAKULAM ----------------------- PETITIONER -------------------- VARGHESE, AGED 49, S/O.MICHAEL, KOPPANDISSERY, MARADU VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): ------------------------- T.K.SIVARAMAN, AGED 78, S/O.KRISHNAN MANIKKATH HOUSE, DOOR NO.XI/668, MARADU VILLAGE, KANAYANNUR TALUK. PIN- 682 504 BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts K.T.SANKARAN, J. ------------------------------ O.P(C).No.1275 OF 2010 ------------------------------ Dated this the 12th day of January, 2011 JUDGMENT The respondent filed O.S.No.1354 of 1999 on the file of the court of the Principal Munsiff of Ernakulam against the petitioner and others for fixation of boundary of the plaint schedule property and for other reliefs. The trial court decreed the suit in part as per the judgment and decree dated 30th June, 2007. The operative portion of the judgment reads as follows: “ In the result, the suit is decreed in part. The southern and eastern boundary of the plaint A schedule property is fixed as follows: The southern boundary is 10.1 line below the yellow shaded portion in Ext.C1(a) plan. The eastern boundary of the A schedule property is 14.0 line on the eastern side of blue shaded portion in C1(a) plan. Other reliefs sought in the plaint are refused. Plaintiff is entitled to get costs of the suit from the defendants. Ext.C1(a) plan shall be made part of the decree.” 2. Dissatisfied with the judgment and decree of the trial court, the plaintiff filed A.S.No.206 of O.P(C).No.1275 OF 2010 2 2007 on the file of the court of the District Judge, Ernakulam. The District Court allowed the appeal as per the judgment dated 7th August, 2008. The operative portion of the judgment reads as follows: “In the result, appeal is allowed. No costs. Decree for putting up of boundary granted by learned Munsiff is confirmed. 1st respondent/ 1st defendant is hereby directed to demolish the building portion on the north-eastern portion of the building to an extent of 1.6 Sq.meter of plaint A Schedule property and the pillar and sunshade portion of the building encroaching into plaint schedule property within 45 days from the date of this judgment, failing which appellant/plaintiff is entitled to get it demolished through court of law.” 3. The respondent filed E.P.No.18 of 2010 to execute the decree. In column 10 of the Execution Petition, the mode in which the assistance is required contains two reliefs . Relief (a) reads as follows: “a) With out the assistance of this Hon'ble Court the decree holder cannot put up the O.P(C).No.1275 OF 2010 3 boundary wall as such this Hon'ble Court may be pleased to depute the amin of this court to execute the decree with the assistance of the advocate commissioner and surveyor in putting up walls on the southern boundary of the plaint A schedule which is the '10.1' line below the yellow shaded portion in the exhibit C1[a]plan and the eastern boundary of the plaint A schedule property which is the '14..0' line on the eastern side of the blue shaded portion in C1[a] plan.” The relief (b) relates to the relief which was granted by the Appellate Court. 4. Against the appellate decree, the petitioner filed R.S.A.No.650 of 2010. When the respondent filed Execution Petition, the petitioner/judgment debtor moved an application for stay in the Second Appeal. This court passed an interim order dated 12th July, 2010 in the Second Appeal, which reads as follows: “There will be an interim stay of execution of the decree subject to the condition that the respondents will be entitled to put up the boundary wall except the portion directed to be demolished by the mandatory injunction order passed by the court below. The respondents can put up the boundary except the protruding portion of the building of the appellant.” O.P(C).No.1275 OF 2010 4 5. The respondent/decree holder filed E.A.No.693 of 2010 before the Executing Court stating that in execution of the decree, a part of the work was carried out on 25.9.2010. However, without the amin and the Taluk Surveyor started to complete the work, they were restrained from doing so by the judgment debtor with the assistance of his henchmen. The decree holder sought the assistance of the police for executing the remaining work in execution of the decree. 6. The petitioner/judgment debtor filed detailed objection to E.A.No.693 of 2010. He contended that the application is not maintainable as no decree was granted permitting construction of the compound wall. The Executing Court overruled the contention raised by the judgment debtor, allowed the Execution Application and granted police assistance, by the order dated 13th December, 2010. The judgment debtor challenges the said order in this Original Petition. O.P(C).No.1275 OF 2010 5 7. Sri.C.Varghese Kuriakose, the learned counsel appearing for the petitioner very vehementally contended that the order passed by the Executing Court is illegal and without jurisdiction. He raised the following contentions: a) The decree does not provide for putting up a compound wall on the eastern and southern sides of the plaint schedule property. b) The decree does not prohibit the defendant from obstructing the construction of the compound wall. c) There is no decree against the petitioner restraining him from trespassing upon the property in question. d) What is granted by the Executing Court as per the order impugned is beyond the terms of the decree. O.P(C).No.1275 OF 2010 6 e) The interim order passed by the High Court in the Second Appeal is not an executable order and no application was filed by the decree holder to execute that order. 8. I am not inclined to accept the contentions raised by the learned counsel for the petitioner. The decree provides for fixation of boundary. The boundary is specified. The decree for fixation of boundary is executable, as only limited stay was granted in the Second Appeal and as the decree passed by the trial court has become final. When the boundary is fixed, the owner of the property is entitled to put up a compound wall on the boundary, even without there being a decree permitting him to put up a compound wall. The owner of an item of immovable property is entitled to put up a boundary wall or fence on the boundary of his property in the manner he likes. When the boundary is fixed, there is no impediment for the decree holder to construct a compound wall. For each and every act O.P(C).No.1275 OF 2010 7 of possession and ownership by the owner of the property, there need not be a decree. When a decree is granted for fixing the boundary, it takes within it the incidental rights of the owner to put up a fence or boundary wall on the boundary so fixed by the decree. 9. The contention raised by the petitioner that the decree does not prohibit the petitioner from obstructing the construction cannot be countenance at all. There is no right for any individual to trespass upon the property of another. No court can countenance the argument of the judgment debtor that he has a right to trespass upon that property in respect of which the boundary was fixed. There cannot be any right to violate a decree and such an imaginary right cannot be put forward in denial of the rightful claim made by the decree holder to put up a boundary wall. There need not be a decree restraining the petitioner from trespassing upon the property to equip the decree holder to pray for O.P(C).No.1275 OF 2010 8 the assistance of the court to put up a boundary wall on the boundary fixed by the court as per the decree. 10. When the decree was sought to be executed, the petitioner approached the Second appellate Court and prayed for a stay of that portion of the decree which was granted by the appellate court. Interim stay was granted on condition that the respondent would be entitled to put up a compound wall on the boundary fixed as per the decree which has become final. The petitioner suffered that order and got the benefit of that order as well. He cannot be allowed to circumvent the terms of that order and at the same time take advantage of that order. The contention raised by the petitioner that no executable order was passed by the High Court is without any substance. When an order is passed by the court permitting the party to construct a boundary wall, it need not be specified in the order that it is an executable order. When O.P(C).No.1275 OF 2010 9 an order is passed by the court, which by its very nature is executable, it goes without saying that the order is executable without anything being stated as to its executability. That the decree holder has not sought to execute the order of the High Court, is too technical a contention. The Executing Court took note of the interim order passed by the High Court and stated that necessary assistance is required to complete the construction of the compound wall as permitted to be made by the interim order passed by the High Court. There is no illegality or impropriety in the order passed by the court below. The Original Petition lacks merits and it is accordingly, dismissed. K.T.SANKARAN, JUDGE. cms