IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 WP(C).No. 16494 of 2009(O) -------------------------- AGAINST THE ORDER DATED 20 /03 /2009 IN EP 1/2006 IN OS.300/1982 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER: ------------------ KUNNATH MOITHU, S/O.KOYAKKUTTY, AKALAD DESOM, PUNNAYUR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT: ------------------- ACHUTHAN, S/O.KADAYAMMAR AYYAPPAN AKALAD DESOM, PUNNAYUR AMSOM CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJIT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.16494/2009 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE DECREE DATED 17/1/2003 IN SA.NO.412/1991. EXT.P1(a) TRUE COPY OF THEL CO,MPROMISE PETITION VIDE CMP.NO.108/2003 IN SA.NO.412/91 & SA.806/91 DATED 17/1/2003. EXT.P2 TRUE COPY OF THE OBJECTION DTD. 7/7/2006 FILED IN E.P.NO.L1/06 IN O.S.NO.300/82 OF THE MUNSIFF'S COURT, CHAVAKKAD. EXT.P3 TRUE COPY OF ORDER DTD. 20/3/09 IN E.P.NO.1/06 IN O.S.NO.300/82 OF THEir MUNSIFF'S COURT, CHAVAKKAD. True Copy HARUN-UL-RASHID,J. ------------------------------ W.P.C.NO.16494 OF 2009 ------------------------------- DATED THIS THE 2ND DAY OF SEPTEMBER, 2010 JUDGMENT This is a petition filed under Article 227 of the Constitution of India challenging Ext.P3 order passed in execution of the decree in O.S.No.300/82 on the file of the Munsiff's Court, Chavakkad. Petitioner is the plaintiff in O.S.No.300/82 and the defendant in O.S.No.360/83. Both suits were jointly tried and a common judgment was passed. Petitioner filed O.S.No.300/82 for specific performance of the contract of sale. The connected suit filed by the respondent was for fixation of boundary. 2. During the course of second appeal the parties settled their disputes and filed Ext.P1(a) compromise petition. The total extent of property in dispute is 151.25 cents. Going by Ext.P1(a) compromise, the respondent, who is the defendant in the suit, agreed to assign 91.25 cents of land in favour of the writ -2- W.P.(C).No.16494/2009 petitioner, who is the plaintiff in the suit. The plaintiff/writ petitioner in turn agreed to hand over possession of the remaining 60 cents of land to the respondent herein. At the time of compromise, the entire extent was in the possession of the writ petitioner. This Court recorded the compromise and passed a decree in terms of the compromise. 3. Execution Petition was filed by the respondent herein. Writ Petitioner filed a detailed objection inter alia contending that the decree is not executable. Ext.P2 is the objection. The trial court by the impugned order appointed a Commissioner for demarcating the said 60 cents of land with the help of Taluk Surveyor and also deputed the same Commissioner for the purpose of effecting the execution of the sale deed. 4. Learned counsel for the writ petitioner submitted that the learned Judge appointed the Commissioner before considering his contention regarding the executability of -3- W.P.(C).No.16494/2009 the decree. In view of the contention raised by the writ petitioner, the execution court shall first decide the preliminary question as to whether the execution petition is maintainable or not. If the court upholds the view that the execution petition is maintainable, the court can proceed to execute the decree. Since the question of executability of the decree was not taken up nor decided, the execution court may not be justified in appointing an Advocate Commissioner for effecting the execution of the sale deed. In the circumstances, the execution court is directed to hear and decide the question of executability of the decree. The court below shall pass an order after hearing both sides. If the court below finds that the decree is executable, then the court can direct the Commissioner to effect execution of the sale deed. The part of the impugned order directing the Commissioner to effect execution of the sale deed shall be kept in -4- W.P.(C).No.16494/2009 abeyance, till a decision is taken as stated above. The court below shall pass a preliminary order within a period of three months from today. Writ Petition is disposed of as above. HARUN-UL-RASHID, JUDGE. kcv.