IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 CRP.No. 617 of 2009() --------------------- AGAINST THE ORDER DATED 31/03/2009 IN EP 44/2001 IN OS.283/1996 of MUNSIFF - MAGISTRATE COURT, S.PARAVOOR .................... REVISION PETITIONER(S): 4TH JUDGMENT DEBTOR/4TH DEFENDANT: --------------------------------------------------------------------------------------------------------- SUDHAMA, W/O. SOMARAJAN, PARIYIL VEEDU, MAILADUMPARA, PAMPURAM CHERRY, PARIPPALLY VILLAGE, NOW RESIDING AT YAMUNA, T.C.22/1952, NEAR MANNAMOOLA BRIDGE, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): DECREE HOLDERS & PLAINTIFFS 1& 2 : JUDGMENT DEBTORS & DEFENDANTS 2 & 3: ----------------------------------------------------------------------------------------------- 1. SIVADASAN, S/O. SANKU NAIR, DAS VILLA, NEAR MAILADUM PARA, PAMPURAM CHERRY, PARIPPALLY VILLAGE. 2. SADASIVAN, S/O. SANKU, SANTHOSH VILASAM, (MUNPINAL VILAYIL VEEDU), 3. BABY, PARAYIL VEEDU, MAILADUM PARA, PAMPURAM CHERRY, PARIPPALLY VILLAGE. 4. SOMARAJAN, S/O. KESAVAN, PARAYIL VEEDU, MAILADUMPARA, PAMPURAM CHERRY, PRESENT ADDRESS-YAMUNA, T.C. 22/1952, NEAR MANNAMOOLA BRIDGE, PEROORKADA VILLAGE, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.R.ANILKUMAR THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.617 of 2009 --------------------------------------- Dated this 12th day of July, 2011 ORDER A dispute in the course of execution of a compromise decree in O.S.No.283 of 1996 of the Court of learned Munsiff- Magistrate, S.Paravoor has given rise to this civil revision at the instance of the fourth judgment debtor. The dispute concerned use of a road and alleged obstruction to that road on account of existence of an electric post. There was a compromise between the parties to the suit and certain others as per which certain arrangements were made for the unobstructed use of the said road. Some of the other judgment debtors agreed that they will shift the electric post then situated on the road to petitioner's property adjoining it. According to the petitioner/fourth judgment debtor, he has not signed the compromise and hence the compromise as well as the decree that followed are not binding on him. It is also her contention that at any rate the decree is not executable in so far as shifting of electric post is within the jurisdiction of the State Electricity Board authorities and the District Magistrate (acting under Sec.17 of the Indian Telegraph Act, for short, "the Act”). A further contention is that C.R.P.No.617 of 2009 -: 2 :- at any rate, electric post has already been shifted to the property of petitioner. The executing court recorded evidence and came to the conclusion that petitioner and other judgment debtors are bound by the decree following the compromise and hence are bound to shift the electric post which obstructed use of the way as reported by the Advocate Commissioner. Accordingly an order was passed by the executing court. The said order dated 31.03.2009 is under challenge. 2. Though various other contentions are also raised regarding the validity and executability of the decree, at the time of hearing learned counsel for petitioner confined his argument to only one point, that the electric post was admittedly shifted from the road but the executing court found without sufficient evidence that it was re-shifted to the road which again is ordered to be shifted back to the property of petitioner. Learned counsel has invited my attention to the relevant documents produced on either side in the executing court. Learned counsel also give me a photocopy of a photograph of the disputed road showing the position of the electric post to contend that it is situated within the property of petitioner and that the electric post does not in any way cause obstruction to the use of the road. Learned C.R.P.No.617 of 2009 -: 3 :- counsel for contesting respondents has invited my attention to Ext.C2(a), report where the Advocate Commissioner has reported that the electric post is situated beyond the basement in the property of petitioner and on the road. 3. Now the only question remained for consideration is whether the electric post which was shifted to the property of petitioner and has re-shifted and as it now stands, causes obstruction to the use of the road. In Ext.C2(a) the Commissioner has stated that electric post is situated beyond the basement constructed towards the western boundary of property of petitioner and that it is situated on the road. It is further stated that on account of that electric post standing on that part of the road, vehicles like cars cannot pass through the said road. Only Autorikshaws could go along the said road. The Commissioner has also reported that except the electric post there was no other obstruction on the road for vehicles like cars to pass. 4. As against that report of the Advocate Commissioner, learned counsel for petitioner has shown me a copy of the photograph of the disputed road. If that photograph is accepted, it tempts one to think that the electric post is situated within the basement constructed on the western boundary of property of C.R.P.No.617 of 2009 -: 4 :- petitioner. 5. Learned counsel for petitioner has invited my attention to Ext.B4, report dated 31.03.2001 prepared by the Executive Engineer and submitted to the Deputy Chief Engineer where reference is made to the dispute between the parties and it leading to the compromise. It is stated that one Somanathan had remitted the work deposit amount with the Electricity Board for shifting of the electric post (in accordance with the compromise decree) and the Assistant Engineer, Parippally has carried out work of shifting the electric post to the extreme end. It is further stated that the post happened to be installed 2 inches inside of property of the complainant before the Electricity Board. There was some complaint to the Electricity Board against shifting and the Assistant Engineer was asked to re-shift the post to avoid encroachment into the property of complainant (before the Electricity Board). The local people obstructed and hence re-shifting could not be carried out. Ext.B18 is another letter dated 30.12.2006 (obtained under the Right to Information Act). In item No.9 of Ext.B18 reference is made to re-shifting of the electric post (to avoid the complaint of post transgressing into the property of complainant before the Electricity Board by 2 C.R.P.No.617 of 2009 -: 5 :- inches) which was not carried out. Learned counsel has also placed reliance on Ext.B20, yet another report. 6. Thus, from the materials it would appear that in terms of the compromise and on the request of one of the parties to it the Electricity Board had shifted the electric post from the road to the property of petitioner and other judgment debtors, their complaint being that it has transgressed into their property by 2 inches. So far as that complaint is concerned, learned counsel for petitioner in fairness has not pursued it before me. Hence what remains to be looked into is only whether the electric post was again shifted into the road causing obstruction to passage of cars and other like vehicles through the road. In the light of the copy of photograph learned counsel has given to me for perusal and the materials which I have referred above which contradicts the report of the Advocate Commissioner in Ext.C2(a), it appears to me that the appropriate course is to send the matter back to the executing court to collect further evidence regarding the present position of the electric post and whether it causes any obstruction to the passage of vehicles like cars through the road in question. I must also bear in mind that shifting of the electric post can be done, be it on the request of judgment debtors or C.R.P.No.617 of 2009 -: 6 :- anybody else only by the State Electricity Board or as per the instruction of the District Collector under Sec.17 of the Act and not as if any party at his vims and fancy could shift the electric post. If there was a re-shifting of the electric post as complained by the respondents/decree holders, necessarily there must be records to that effect with the Electricity Board which also could be summoned to prove the contention of respondents/decree holder. Resultantly, the impugned order is set aside and the matter is remitted to the executing court for fresh disposal on the question whether there was a re-shifting of the electric post, and at any rate into the road in question and whether the electric post causes obstruction to the passage of vehicles like cars through the said road. It is open to both parties to adduce further evidence on these aspects of the matter. Petitioner may also take out a commission for the said purpose notwithstanding the reports already on record and obtain photographs of the disputed portion of the road showing the position of the electric post to ascertain whether it transgresses into any portion of the road or causes obstruction to the passage of vehicles like cars through the said road. Based on the evidence thus let in as well, the C.R.P.No.617 of 2009 -: 7 :- executing court shall issue necessary directions to the parties before it and if necessary to the Electricity Board for locating and shifting the electric post in such a way that it is not situated on any portion of the road in question and does not cause any obstruction to the passage of vehicles like cars through the said road. (THOMAS P JOSEPH, JUDGE) Sbna/-