IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH JUNE 2007 / 23RD JYAISHTA 1929 CRP.No. 311 of 2007() --------------------- AGAINST THE ORDER DATED 28/03/2007 IN EP.58/2005 IN OS.399/1969 of MUNSIFF COURT,MUVATTUPUZHA .................... REVN. PETITIONER: JUDGMENT DEBTORS. ----------------------------------- 1. ALEYAMMA ITTAN PILLAI, W/O.LATE ITTAN PILLAI, POTTAYIL HOUSE, KAVUMPADY ROAD, MUVATTUPUZHA. 2. P.I.JOY, S/O.LATE ITTAAN PILLAI, POTTAYIL HOUSE, (ELAVUMGAL), ONAKKOOR KARA, MUVATTUPUZHA THALUK. 3. P.I.JEEVAN, S/O.LATE ITTAN PILLAI, AGED ABOUT 52 POTTAYIL HOUSE, KAVUMPADY ROAD, MUVATTUPUZHA. BY ADV. SRI.S.EASWARAN RESPONDENTS: RESPONDENTS ------------------------ 1. ISSAC.T.CHERIAN, S/O.CHERIAN, AGED 56 YEARS, THEKKUMMEL HOUSE, PAIPRA KARA, MUVATTUPUZHA VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ISSAC CHERIAN, S/O.ISSAC, THEKKUMMEL HOUSE, PAIPRA KARA, MUVATTUPUZHA VILLAGE. 2. ALEYAMMA CHERIAN, W/O.CHERIAN, AGED 74 YEARS, THEKKUMMEL HOUSE, PAIPRA KARA, MUVATTUPUZHA VILLAGE. 3. ISSAC CHERIAN, S/O.ISSAC, AGED 77 YEARS, THEKKUMMEL HOUSE, PAIPRA KARA, MUVATTUPUZHA VILLAGE. 4. M/S.KALABAR FRUIT PRODUCTS COMPANY, MANJALLOOR KARA, REPRESENTED BY ITS MANAGING PARTNER ABRAHAM THOMAS, S/O.THOMAS, ETTUPARAYIL HOUSE, KAVUMPADY ROAD, MUVATTUPUZHA. BY ADV. SRI.SHAJI P.CHALY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/06/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO: 948/07 IN C.R.P.311/07 DISMISSED: 13/6/2007 SD/- M.N.KRISHNAN, JUDGE jj /TRUE COPY/ P.A.TO JUDGE M.N.KRISHNAN, J. ----------------------------- C.R.P.No.311 OF 2007 F ----------------------------- Dated this the 13th June, 2007. O R D E R This revision petition is preferred against the order of the executing court, Muvattupuzhain E.P.58/05 in O.S.399/69. As per the decision the court directed the Commissioner to remove the entire obstructions at a length of 228 links as noted in the report and sketch prepared by her and further direction was to do the work as early as possible. It is against that decision the defendants have come up in revision. It is interesting to see that a litigation which has started in the year 1969 still looms large and each and every step is being objected to and at last the judgment debtors have come to the court now stating that the decree schedule property is not properly identified and therefore execution could not be done. The said person who had filed the execution petition is an assignee of the decree and that he instituted a separate suit for establishment of his right which was turned down on the ground that the earlier decree is the one which is to be executed and therefore he approached the executing court with a prayer to execute the decree obtained by his predecessors in interest. 2. Learned counsel for the revision petitioner C.R.P. 311/07 2 contends before me that a reading of the decree schedule would show that the property is almost having an 'L' shape and having a length of 250 links each in the north-south and east-west direction and it is the decree schedule which is to be executed and not the way which the executing court has at presently done. The executing court appointed a commissioner and a rough sketch is appended along with the counter filed by the decree holder which would show that the decree holder's house is situated on the northern side and the defendants' house is situated on the southern side and there is a road called Kavumpady road on the southern side of the defendants' property. Now what the Commissioner has done is that he had taken the northern side measurement of 228 links which will really lead to the entrance of the plaintiffs' property and therefore sought direction from the court with respect to the same. She had also reported that if 250 links is measured it will take one to the courtyard of the plaintiffs and similarly if the east-west direction of 250 links is taken then it will be running to a distance of 115 links through the plaintiffs' property and balance through third person's properties. I may like to very clearly state that the defendants have no case at any point of time that they are entitled to use the way through the plaintiffs' property which further C.R.P. 311/07 3 extends and joins somewhere. On the other hand the suit is filed by the plaintiffs against the defendants claiming right over the way which runs through the defendants' property. Learned counsel for the revision petitioners contends before me that by virtue of modification of the decree by the appellate court it has to be held that the defendants are also having the right to use the way. One is concerned about that direction and what is the real concern is which is the property through which decree holder has to be given a right of way. It is in that angle the executing court has proceeded in the matter. It is true that a reading of the decree schedule may create some confusion but it is crystal clear that the case of the plaintiffs as understood by the defendants is only a right of way to the property of the plaintiffs and not through the property of the plaintiffs. If the decree is understood in that way and it is to put into execution it has to be held that what the commissioner had done is precisely right. The commissioner who visited the property actually measured the property from the road and when it reached 228 links north of the road there ended the defendants' property and 22 links is to be measured further north of it, which will reach the courtyard of the plaintiffs. There is no case for the defendants that they C.R.P. 311/07 4 are having any right of way through the courtyard of the plaintiffs. As stated by me earlier, there cannot be any case for the defendants that there is a way running north- east and partly through the plaintiffs' property over which they claim right and it has not been a subject matter at all in the litigation of the year 1969. So just because there is some confusion that has been created by the way of the description in the decree one cannot hold that the decree has become unexecutable. But the commissioner who inspected the property precisely finds where the path way has to be located. She has taken the length of the path way. She has found the two extremities of the path way, marked it and she has attempted to execute that work for the satisfaction of the decree. Learned counsel for the revision petitioners would submit that his clients had been deprived opportunity of filing objections and challenge the commissioner's report. They are litigating for the last 38 years. They have succeeded in protracting the matter and I feel the time has come to put an end to it and implement whatever is possible under the decree. The executing court has directed the commissioner to remove the obstruction which has been caused and to clear the path way which will lead to the plaintiffs' house. I do not find any serious infirmity, illegality or irregularity committed by the C.R.P. 311/07 5 executing court in giving such a direction and therefore the C.R.P lacks merits and it is dismissed. Needless to say that the executing court shall give further directions to the commissioner and see that the decree is satisfied fully and finally by giving appropriate directions. The interim order that has been passed by this Court will continue till finalisation of the matter. M.N.KRISHNAN Judge jj