IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 WP(C).No. 7015 of 2008(I) ------------------------- AGAINST THE ORDER IN EA.85/08 IN EP.478/07 IN OS.903/1995 of PRL.M.C., ERNAKULAM .................... PETITIONER/PETITIONER/JUDGMENT DEBTOR/1ST DEFENDENT: ------------ ABDUL RAHIMAN, S/O.ABOOBACKER THUNDIPARAMBIL HOUSE, CHALIKKAVATTOM, VENNALA, COCHIN-28. BY ADV. SRI.BABU CHERUKARA SRI.S.RUSSEL RESPONDENT/RESPONDENT/DECREE HOLDER/PLAINTIFF: ------------- ASHRAF, S/O.ABDUL RAHIMAN VELLEPARAMBIL, SHARON, KAVANATT CHAKKARAPARAMBU, THAMMANAM P.O. BY ADV. SRI.PEEYUS A.KOTTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7015/2008/I APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE JUDGMENT IN O.S.NO.903/95 DATED 23-2-1998 OF THE MUNSIFF'S COURT, ERNAKULAM. EXT. P2: COPY OF THE DECREE IN O.S. NO.903/95 DO. DO. EXT. P3: COPY OF THE COMMISSION REPORT FILED IN O.S. NO.1709/00 OF THE MUNSIFF'S COURT, ERNAKULAM DATED 21-11-2000. EXT. P4: COPY OF THE JUDGMENT IN R.S.A. NO.74 OF 2004 DATED 18-5-2004 OF THE HON'BLE HIGH COURT OF KERALA. EXT. P5: COPY OF THE E.P.NO.478/07 IN O.S. NO.903/95 DATED 7-8-2007. EXT. P6: COPY OF THE OBJECTION FILED BY THE J.D. IN THE ABOVE E.P. DATED 6-12-2007. EXT. P7: COPY OF THE COMMISSION APPLICATION E.A. NO.85/08 IN E.P. NO.478/07 IN O.S.903/95 DATED 23-1-2008. EXT. P8: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN THE E.A. 85/08 DO. DO. DATED 22-2-2008. EXT. P9: COPY OF THE COMMON ORDER IN E.P. NO.478/07 AND E.A. 85/08 IN O.S.NO.903/95 DATED 12-2-2008. /TRUE COPY/ P.A. TO JUDGE JP M.SASIDHARAN NAMBIAR, J. ------------------------------------------------- W.P.(C) No.7015 of 2008 ------------------------------------------------- Dated this the 27th day of May, 2008 JUDGMENT Petitioner is the judgment debtor in O.S.No.903 of 1995 on the file of Munsiff Court, Ernakulam. E.P.No.478 of 2007 was filed by the respondent decree holder for executing the decree for permanent prohibitory injunction. The decree for mandatory injunction was executed earlier by filing E.P.No.351/99. In the present execution petition, petitioner filed E.A.No.85/08, an application to appoint a Commissioner to inspect the decree schedule property and report as to the existence of passage through the decree schedule property. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. The argument of the learned counsel appearing for the petitioner is that under Section 47 of the Code of Civil Procedure, petitioner is entitled to agitate the right of way available to him as the right of way was not considered or decided in O.S.No.903/95. Relying on the decision of the Apex Court in Bhavan Vaja and others vs. Solanki Hanuji Khodaji WPC 7015/08 2 Mansang and another (AIR 1972 Supreme Court 1371) learned counsel appearing for the petitioner argued that the principle that the executing court cannot go behind the decree under execution does not mean that it has not the duty to find out the true effect of that decree and for that purpose, executing court ought to consider the pleadings as well as the circumstances leading up to the decree. The argument of the learned counsel is that the suit was only for injunction against trespass and no issue was raised regarding the right of way and therefore, question of right of way was not agitated or decided in the earlier suit and therefore, the executing court is bound to consider the question. Being a suit for injunction restraining the defendant from trespassing into the plaint schedule property, the right of way if any is a question which might and ought to have been agitated by the petitioner before the decree. After passing of the decree petitioner is not entitled to agitate the question and cannot claim that executing court is bound to decide that question. The executing court can only execute the decree and cannot consider the right of way which was not claimed in the suit. WPC 7015/08 3 In such circumstances, I do not find any reason to interfere with Ext.P9 order passed by the learned Munsiff. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE csl