IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 2446 of 2008(N) ------------------------- AGAINST THE ORDER DATED 16/01/06 IN EA.46/2005 IN E.P.NO.28/02 OS.311/1990 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER: --------------- JANAKI ,MURALEE BHAVANAM,ULAVUKKADU MURI PAIAMEL VILLAGE. BY ADV. MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MR.A.R.DILEEP MS.KAVITHA GANGADHARAN RESPONDENTS: --------------- 1. RAVI,S/O.VELUTHA KUNJU, MALABHAGATHU VEEDU,ULAVUKKADU MURI,PALAMEL VILLAGE. 2. SOMAN,OF DO..DO... 3. KOCHU PENNU,OF DO...DO..... 4. PANKAJAKSHY,OF DO...DO... 5. RAJAN, OF DO...DO.. ADV. MR.RASHEED C.NOORANAD FOR R1-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2446 of 2008(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: JUDGMENT DATED 30.6.1995 IN O.S.NO.311/1990. EXT.P2: DECREE DATED 30.6.1995 IN O.S.NO.311/90. EXT.P3: E.P.NO.28/02 BEFORE THE MUNSIFF COURT, MAVELIKKARA. EXT.P4: OBJECTION FILED BY THE RESPONDENTS IN E.P.NO.28/02. EXT.P5: E.A.NO.46/05 IN E.P.NO.28/02 IN O.S.NO.311/90. EXT.P6: OBJECTION FILED BY THE PETITIONER IN E.A.NO.46/05. EXT.P7: ORDER DATED 16.1.2006 IN E.P.NO.28/02. RESPONDENTS' EXHIBITS: NIL ------- // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.2446 Of 2008 ---------------------- Dated this the 19th day of October, 2010. J U D G M E N T Petitioner is the decree holder in E.P.No.28 of 2005 in O.S.No.311 of 1990 on the file of the Munsiff Court, Mavelikkara. Petitioner is aggrieved by Ext.P7 order passed by the said court in E.A.No.46 of 2005. The said E.A was filed by the judgment debtors. Ext.P5 is the copy of the said E.A filed for permitting the judgment debtors to examine the witnesses and adduce evidence with regard to the identity of the decree schedule property. The judgment debtors adduced oral and documentary evidence in support of their case that the property sought to be delivered is not the decree schedule property. Judgment debtors examined PWs 1 to 3 who are the village officer and taluk surveyors. The decree holder produced Exts.B1 survey plan. 2. In the decree dated 30.6.1995 passed in O.S.No.311 of 1990 the court declared the title of the plaintiff over the plaint item No.2 and directed the defendants to dismantle and remove the shed within three months from the date of the decree, failing W.P(C).No.2446 Of 2008 ::2:: which the plaintiff will be at liberty to remove it through court and realise the expenses from the defendants. A decree for consequential injunction was also passed. The plaint item No.2 is one cent of property comprised in survey No.305/1A/1. In the execution petition filed by he plaintiff/decree holder the execution court ordered delivery of the property. The order was passed by the execution court without hearing the judgment debtors who remained ex-parte. When the Amin went to the spot there was obstruction for delivery and so delivery was not effected. Thereafter the judgment debtors entered appearance and filed the present E.A for permitting them to adduce evidence with regard to the identity of the property. It is the definite case of the judgment debtors that the property sought to be delivered is not the decree schedule property. The court after examining the oral and documentary evidence adduced by the judgment debtors held that the decree holder is not entitled to recover possession of the decree schedule property since she failed to identify the property. The learned judge held that the judgment debtors have proved that the decree holder is not having any property in survey No.224/2. W.P(C).No.2446 Of 2008 ::3:: 3. The grievance of the petitioner/decree holder is that the executing court without properly considering the evidence on record, illegally held that the decree holder is not entitled to recover possession of the property from the judgment debtors and that the court illegally dismissed the execution petition instead of dismissing the E.A. The judgment debtors who have filed the E.A for permitting them to adduce evidence to prove that the property sought to be delivered is not the decree schedule property did not take commission to measure and identify the property sought to be delivered. In the facts and and circumstances of the contentions of the respective parties, the identification and demarcation of decree schedule property is necessary for a just and proper disposal of the execution petition. It is a fact that the decree holder failed to apply for a survey commission. In the facts and circumstances discussed above, it has become necessary to identify the property sought to be delivered. For that purpose the decree holder shall be given an opportunity to adduce evidence in support of her case that the property sought to be delivered is the decree schedule property. The decree holder shall take steps to appoint an advocate W.P(C).No.2446 Of 2008 ::4:: commissioner for measurement and demarcation of the decree schedule property. The execution petition shall be considered on merits after giving an opportunity to the decree holder to adduce evidence in support of her claim under the decree. Therefore Ext.P7 order is set aside. The executing court is directed to reconsider the matter on the basis of the findings and observations made above. The writ petition is disposed of as above. HARUN-UL-RASHID, Judge. bkn/-