IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 CRP.No. 339 of 2009() ------------------------------ AGAINST THE ORDER DATED 26/02/2009 IN EP 1100/03 IN OS.1424/2001 of PRL.MUNSIFF COURT,IRINJALAKUDA .................... REVN. PETITIONER(S): PETITIONER/DECREE HOLDER -------------------------------- JOHNY, S/O.VAREED, AGNKAMALI HOUSE, PERAMRA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.M.R.VIBIN RESPONDENT(S): JUDGEMENT DEBTOR ------------------------------- ANTONY @ JOHNSON, S/O.VAREED, AGNKAMALI HOUSE, POTTA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. R1 BY ADV. SRI.V.V.ASOKAN, SRI.P.P.RAMACHANDRAN. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 339 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010. ORDER Two brothers, who are at logger heads, are in court with regard to the property obtained by them under a partition. The property admittedly belonged to the father of the plaintiff as well as the respondent. The brothers have a sister also. After the death of the father, the property was partitioned between the brothers and sister has a life estate over the building in the suit property. One of the conditions in the partition deed was that the petitioner before this court is allowed to reside in a portion of the building for five years and thereafter that portion had to be demolished. Since that was not complied with and there was no demarcation between the shares of the petitioner and the respondent herein, the respondent in this revision petition filed O.S. 1424 of 2001 for various reliefs. One of the reliefs was for CRP.339/2009. 2 demarcating the boundary of the property set apart to the brothers. The trial court decreed the suit. The defendants carried the matter in appeal and the plaintiff filed a cross- appeal so far as the decree went against him. In appeal, the lower appellate court seems to have modified the decree to some extent. It also recognized the right of the sister to reside in the building during her life time. 2. It may now be noticed that as soon as the decree in the suit was passed, execution was taken out by the respondent. He sought relief on the basis of the decree as it stood. After the appellate court modified the decree, he produced the copy of the decree before execution court. The court below after considering the various aspects passed the impugned order. 3. Learned counsel appearing for the petitioner contended that what was sought for was the execution of the decree of the trial court, which no longer exists in the light of the decree passed by the appellate court or in other words the decree of the trial court has merged with the CRP.339/2009. 3 appellate court decree and the appellate court decree alone is executable. It is also pointed out by the learned counsel that under the decree no portion of the property was set apart to the respondent, who was the plaintiff in the suit. The short point taken is that what is now sought to be executed is not the decree of the appellate court but the decree of the trial court. 4. Learned counsel for the respondent on the other hand pointed out that after the trial court decree was passed, he produced a copy of the same before the trial court. The trial court found that as regards that portion of the decree, which was concerned with the laying of the boundary there was no variation and the decree holder confined his relief to the laying of the boundary. The execution court has relied on Exts.C1 and C1(a) reports filed in the suit and on the basis of which a decree was granted. It is therefore contended that there is no merit in the contention raised by the revision petitioner. CRP.339/2009. 4 5. Learned counsel for the petitioner is justified in his submission that the trial court decree has merged with the decree of the appellate court. It has also brought to my notice that the Second Appeal, which was brought before this court by the petitioner has also been dismissed. 6. A perusal of the E.P. shows that the main relief sought in the execution petition was one for laying boundary as determined in the suit on the basis of Ext. C1 report and C1(a) plan. True the execution was taken out before the appeal was filed. In the first appeal there was a modification of the decree. But as far as the laying of the boundary is concerned, the appellate court confirmed the decree of the trial court. Therefore there is no variation as regards this aspect is concerned. 7. It is to be noticed that the decree holder has produced the appellate decree before the execution court. It is seen from the order that at the time of hearing of the execution petition, the decree holder had confined his relief to the laying of boundary, even though the decree contained CRP.339/2009. 5 various other aspects also. The court below found that merely because execution petition has been filed earlier, it cannot be said that the execution cannot be continued. The court below has observed that as regards the laying of the boundary,which was decreed in favour of the plaintiff in the suit, which was confirmed by the appellate court in the appeal also the petitioner had confined his relief to the laying of boundary alone. 8. Under those circumstances, it was found by the court below that the contention raised by the judgment debtor cannot be countenanced. It has found that there is no merit in the contention at all. Since the execution was confined to laying of boundary, the judgment debtor could not have valid objections for executing that portion of the decree. As rightly noticed by the court below, that portion of the decree was confirmed in appeal also. The court below has only directed that in execution proceedings the boundary to be determined and some identification mark may be put so as to demarcate the boundary. CRP.339/2009. 6 9. There is no illegality or irregularity in the order nor could it be said to be perverse. It is in accordance with the decree granted by the trial court and which was confirmed in appeal with regard to the laying of the boundary. This revision petition is without merits and it is accordingly dismissed. P. BHAVADASAN, JUDGE sb.