IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 4302 of 2009(K) EP.356/2006 IN OS.3035/2003 of II ADDL.MUNSIFF'S COURT, THRISSUR PETITIONER: CHANDRAN, S/O. MANNUMMEL AYYAPPAKUTTY, ANTHIKKAD VILLAGE /DESOM, THRISSUR TALUK. BY ADV. SRI.O.D.SIVADAS RESPONDENT: PANKAJA MURALEEDHARAN, W/O.PULIMOOTTIL MURALEEDHARAN, D/O.ERANEZHATH KOCHUKUTTAN, ANTIKKAD VILLAGE/DESOM, THRISSUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4302 OF 2009 K ------------------------------------------------------ Dated this the 10th February, 2009 JUDGMENT The respondent filed O.S.No.3035 of 2003, on the file of the Munsiff.s Court, Thrissur, against the petitioner for a permanent prohibitory injunction restraining the petitioner/defendant from closing the plaint B schedule pathway or causing obstruction to the same or from using the same by the plaintiff and his family members. The dispute was referred to the Lok Adalath as per the order dated 12.11.2004. An award was passed by the Lok Adalath. Complaining that the award of the Lok Adalath was not complied with and that obstruction was caused to the pathway, the respondent filed Execution Petition. In that Execution Petition, an Advocate Commissioner was appointed. He filed Ext.P4 report and sketch. The respondent/plaintiff filed E.A.No.1742 of 2008 to remit the Commissioner's report and sketch. Inspection of the property with the assistance of Surveyor was also sought for. The court below, by Ext.P7 order dated 24.7.2008, allowed E.A.No.1742 of 2008 and the report submitted by the Commissioner was remitted to him. Pursuant to Ext.P7 order, the Commissioner inspected the property and submitted Ext.P8 report dated 10.11.2008. The respondent/decree holder has filed Ext.P9 application stating that even after the inspection by the W.P.(C) NO.4302 OF 2009 K :: 2 :: Commissioner on the second occasion, obstruction was caused by the petitioner to the user of the pathway. It is also stated therein that the Commissioner was obstructed in removing the obstruction caused to the pathway. Police assistance was sought for, for the removal of the obstruction caused to the pathway. Ext.P9 application is pending. 2. This Writ Petition is filed by the petitioner for the following reliefs: “(i) call for the records leading to E.P.No.356 of 2006 and E.A.No.1742 of 2008 in O.S.No.3035 of 2003 on the file of 2nd Additional Munsiff Court, Thrissur and set aside the orders issued in E.A.No.1742 of 2008 and other consequential proceedings. (ii) declare that the E.P.No.356 of 2006 in O.S.No.3035 of 2003 on the file of 2nd Additional Munsiff Court, Thrissur is not maintainable. (iii) grant the petitioner such other and further reliefs which this Honourable Court deem just and fit in the circumstances of the case.” 3. Relief (i) is to set aside the order dated 24.7.2008 in E.A.No.1742 of 2008, remitting the Commissioner's report. That order was implemented. The Commissioner inspected the property pursuant to that order. He has filed a report also. Therefore, relief (i) is not maintainable at this stage and it has become infructuous. W.P.(C) NO.4302 OF 2009 K :: 3 :: 4. Relief (ii) is to declare that the proceedings in E.P.No.356 of 2006 are not maintainable. I do not think that the petitioner would be entitled to put forward such a contention at this stage. How the Execution Petition is not maintainable is not established. The reason stated by the counsel for the petitioner for supporting this relief is that the respondent/decree holder is trying to carve out a new pathway, which was not included in the plaint schedule and which was not the subject matter of the award passed by the Lok Adalath. These are all matters which could be put forward in the Execution Petition itself. Petitioner cannot straight away file a Writ Petition to set aside the whole proceedings in execution on this contention. The Writ Petition is devoid of merits and it is accordingly dismissed. The dismissal of this Writ Petition will not stand in the way of the petitioner in raising appropriate contentions before the executing court. (K.T.SANKARAN) Judge ahz/