IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 OP(C).No. 3977 of 2011(O) ------------------------------------- AGAINST THE ORDER EA 210/10 & 217/10 IN EP 55/1999 IN OS.762/1976 ON THE FILE OF PRINCIPAL MUNSIFF COURT, KOCHI .................... PETITIONER (S): ------------------------ 1. CICILY ,W/O.THOMAS AGED 69 YEARS, CHITEZHATHU HOUSE, HOSPITAL JUNCTION, NARAKAL VILLAGE, KOCHI-682505 2. BABU THOMAS,AGED 45 YEARS S/O.THOMAS, CHITEZHATHU HOUSE, HOSPITAL JUNCTION NARAKAL VILLAGE, KOCHI-682505 3. RAJU THOMAS,AGED 37 YEARS,S/O.THOMAS, CHITEZHATHU HOUSE, HOSPITAL JUNCTION NARAKAL VILLAGE, KOCHI-682505 4. SHEELA PAULOSE ,AGED 49 YEARS, D/O.THOMAS, MANDAPATHIL HOUSE, NEAR MAMPALLY WORKSHOP, MANJANAKKAL ROAD,NJARAKKAL-682505 5. RANI MATHEW AGED 47 YEARS, D/O.THOMAS, KONNULLY HOUSE, KOCHUPALLY ROAD, THOPPUMPADY KOCHI-5 6. MINI BENNY AGED 39 YEARS, D/O.THOMAS, THUNDATHIL HOUSE, HOSPITAL JUNCTION NARAKKAL-682505 BY ADV. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL RESPONDENT(S): ------------------------- K.C. BABU, AGED 50 YEARS, S/OCHAKUNNI, KOLLANUR PALACE, KATHRUKADAVU, ERNAKULAM VILLAGE, KADAVANTHRA, ERNAKULAM - 682 017. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD OPC NO. 3977/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1:- COPY OF E.P.55/1999 IN OS.762/1976 ON THE FILE OF MUNSIFF'S COURT, KOCHI EXT.P2:- COPY OF PETITION E.A.210/2010 IN EP.55/1999 IN OS.762/1976 ON THE FILE OF MUNSIFF'S COURT, KOCHI-DTD-10-12-2010 EXT.P3:- COPY OF THE OBJECTIONS DTD 25/1/2011 IN EP/55/1999 IN OS.762/ 1976 ON THE FILE OF MUNSIFF'S COURT,KOCHI EXT.P4:- COPY OF THE INTERIM REPORT IN EP.55/1999 IN O.S.762/1976 ON THE FILE OF MUNSIFF'S COURT,KOCHI EXT.P5:- COPY OF THE PETITION EA-217/2011 EP. 55/1999 IN O.S.762/1976 ON THE FILE OF MUNSIFF'S COURT, KOCHI EXT.P6:- COPY OF THE OBJECTION IN EA 217/2011 IN EP 55/1999 IN O.S. 762/1976 ON THE FILE OF MUNSIFF'S COURT ,KOCHI EXT.P7:- COPY OF THE ORDER DTD 24/11/2011 IN EA 217/2011 IN EP 55/1999 IN OS.762/1976 OF MUNSIFF'S COURT KOCHI EXT.P8:- COPY OF THE JUDGMENT DTD 5/10/2006 IN WPC 24048/2006 ON THE FILE OF HIGH COURT OF KERALA RESPONDENTS' EXHIBITS NIL TRUE COPY P.A. TO JUDGE SD THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3977 of 2011 -------------------------------------- Dated this the 7th day of December, 2011. JUDGMENT Petitioners are judgment debtors in E.P.No.55 of 1999 in O.S.No.762 of 1976 of the court of learned Principal Munsiff, Kochi. Respondent is an assignee from the decree holders who obtained a decree for prohibitory injunction against petitioners putting up further structures in the decree schedule property. Alleging violation on the part of petitioners, respondent filed E.P.No.55 of 1999 with a request to take action against petitioners for disobedience of the decree for prohibitory injunction and also to demolish the structures (allegedly) put up by petitioners in violation of the decree. Petitioners filed objection contending that structures if any put up are not within the decree schedule property. Thereon respondents filed E.A.No.210 of 2010 for appointment of an Advocate Commissioner to ascertain and report whether the impugned structures are put up in the decree schedule property. I am told that the Advocate Commissioner has already inspected the property. But the Advocate Commissioner filed Ext.P4, interim report and the executing court directed the Tahsildar to assistant the Advocate Commissioner for identification of the decree schedule property. While so, petitioners filed Ext.P5 – E.A.No.217 to direct the Advocate Commissioner not to make measurements inside the existing building in the decree schedule property where petitioners are staying. Petitioners contended that for execution of the decree as prayed for in E.P.No.55 of 1999 it OP(C) No.3977/2011 2 is not necessary to take the inner measurements of the said building. To that application, respondent filed Ext.P6, objection. Learned Munsiff passed Ext.P7, order dated 24.11.2011 that the measurements if taken as pointed out in E.A.No.210 of 2010 will not cause any irreparable injury, loss or hardship to the petitioners and hence dismissed E.A.No.217 of 2010. That order is under challenge. 2. Learned counsel for petitioners contended that for proceeding with E.P.No.55 of 1999 and considering the prayers made therein, measurement of inner side of residential building of petitioners is not required. That attempt is only to harass the petitioners. 3. Learned counsel for the respondent submitted that in E.A.No.210 of 2010 the request was to ascertain the length, breadth and nature of the existing residential building. Learned counsel has no contention that measurement of the inner side of the building should be taken. 4. Having heard counsel on both sides I am inclined to think that measurement of the inner side of residential building of petitioners is not required to proceed with and decide the reliefs prayed for in E.P.No.55 of 1999. To that extent the impugned order requires interference. OP(C) No.3977/2011 3 Resultantly this Original Petition is allowed in part. Ext.P7, order will stand set aside and E.A.No.217 of 2010 will stand allowed to the extent that it is made clear that it is not necessary for the Advocate Commissioner to take the inner measurements of the residential building of petitioner. In other respects it is open to the Advocate Commissioner to proceed with the order on E.A.No.210 of 2010. THOMAS P.JOSEPH, Judge. cks