IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 OP(C).No. 3589 of 2011(O) ---------------------------------- OS.105/1980 of PRL.M.C.,TRIVANDRUM ............................ .................... PETITIONER: --------------------- VASANTHA, W/O.SURENDRAN, 53 YEARS, RESIDING AT PUTHUVAL PUTHENVEED, PALACE VIEW ROAD, THIRUMALA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): ------------------------- 1. K.DEVAPALAN, S/O.KUNJUKRISHNA PANICKER, PUTHUVAL PUTHEN VEEDU, NEAR SETHU MOUNT PALACE, POOJAPPURA, THIRUVANANTHAPURAM-695 012. 2. D.AMMINIKKUTTY, W/O.LATE GOVINDAN, NIRAPPIL VEEDU, VILAPPILSALA, VILAPPIL VILLAGE.695 012. 3. SUJATHA, D/O.DEVANI KAMALAMMA, PUTHUVAL PUTHEN VEEDU, ARAMADA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM.695 012. 4. K.SUNILKUMAR, S/O.KRISHNAN, PUTHUVAL PUTHEN VEEDU, ARAMADA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM.695 012. 5. SUNI KAMALAMMA, PUTHUVAL PUTHEN VEEDU, ARAMADA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM.695 012. 6. JAYASREE, W/O.SURENDRAN, PUTHUVAL PUTHEN VEEDU, ARAMADA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM.695 012. 7. SASI, S/O.KUNJULEKSHMI, PUTHUVAL PUTHEN VEEDU, ARAMADA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM.695 012. 8. MOHANAN, S/O.KUNJULEKSHMI, PUTHUVAL PUTHEN VEEDU, ARAMADA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM.695 012. 9. VIJAYAN, S/O.KUNJULEKSHMI, PUTHUVAL PUTHEN VEEDU, ARAMADA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM.695 012. 10. SATHY, S/O.KUNJULEKSHMI, PUTHUVAL PUTHEN VEEDU, ARAMADA VILLAGE, POOJAPPURA, THIRUVANANTHAPURAM.695 012. 11. VASANTHA, W/O.VIJAYAN, H.NO.XII/321, THUSHARA MYLADUM MOOZHYIL, KATTAKKADA.P.O., THIRUVANANTHAPURAM.695 572. 12. SUNI, D/O.VIJAYAN, H.NO.XII/321, THUSHARA MYLADUM MOOZHYIL, KATTAKKADA.P.O., THIRUVANANTHAPURAM.695 572. 13. KANNA, S/O.VIJAYAN, H.NO.XII/321, THUSHARA MYLADUM MOOZHYIL, KATTAKKADA.P.O., THIRUVANANTHAPURAM.695 572. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU OP(C).No. 3589 of 2011(O) APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1- TRUE COPY OF THE JUDGMENT IN O.S.NO.912/1984 OF THE MUNSIFFS COURT, THIRUVANANTHAPURAM. EXHIBIT P2- TRUE COPY OF THE JUDGMENT IN O.S.NO.430/2006 ON THE FILE OF THE IST ADDL.MUNSIFFS COURT, THIRUVANANTHAPURAM. EXHIBIT P3- TRUE COPY OF THE EXECUTION PETITION IN E.P.NO.131/2010 IN O.S.NO.105/1980. EXHIBIT P4- TRUE COPY OF THE OBJECTION FILED BY 7TH JUDGMENT DEBTOR. EXHIBIT P5- TRUE COPY OF THE LIST OF DOCUMENTS SUPPORTED BY HER AFFIDAVIT, DATED 10/08/2011 FILED IN E.P.NO.131/2010 IN O.S.NO.105/1980 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. EXHIBIT P6- TRUE COPY OF THE ORDERED DATED 19/10/2011 IN E.P.NO.131/2010 IN O.S.NO.105/1980 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE. STU THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3589 of 2011 ==================================== Dated this the 04th day of November, 2011 J U D G M E N T Fist respondent appears through counsel. In the view of the decision I propose to take in this Original Petition notice to respondent 2 onwards is dispensed with. 2. This Original Petition is in challenge of Ex.P6, order passed by the learned Munsiff, on 19.10.2011 in E.P. No.131 of 2010 in O.S No.105 of 1980. First respondent obtained a decree for recovery of possession, putting up boundary between plaint A and B schedules and for demolition of a part of the building. The suit was decreed and the appeal ended in a dismissal. Decree of the first appellate court was challenged in Second Appeal. During the pendency of the Second Appeal some of the appellants/defendants who preferred the appeal died but that was not brought to the notice of the court and the Second Appeal was dismissed on merit. That was followed by the first respondent filing Ext.P3, execution petition against the surviving defendants and the legal heirs of deceased defendants. Petitioner filed Ext.P4, objection. She claimed that she purchased 5 cents and building thereon from one Kunjulakhsmi (either herself or her predecessors-in-interest were parties to the suit) as per document O.P(C) No.3589 of 2011 -: 2 :- No.1811 of 1991. On the strength of that claim petitioner and her husband filed O.S. No.430 of 2006 and obtained a decree for prohibitory injunction against the first respondent and others. That matter is pending in appeal – A.S No.46 of 2007. It is while so, that the first respondent filed Ext.P3, application for execution where petitioner preferred Ext.P4, objection. Various contentions were raised before the executing court including that since the legal representatives of deceased appellants/defendants were not brought on record in the Second Appeal, the decree passed by this Court in the Second Appeal is a nullity, execution of the decree is barred by limitation and that at any rate, in view of the decree in O.S. No.430 of 2006 first respondent is not entitled to execute the decree in O.S.No.105 of 1980. The said contentions were found against by the executing court which directed the decree to be executed with the assistance of a Surveyor. Learned counsel has asserted the contentions petitioner raised in the executing court. Learned counsel for first respondent contended that so far as the decree in O.S. No.105 of 1980 stands it is to be executed by the executing court which cannot go behind the decree. 3. Even if it is assumed that judgment and decree in O.P(C) No.3589 of 2011 -: 3 :- the Second Appeal are a nullity for the reason that legal heirs of defendants who preferred that appeal were not impleaded, that does not in any way abate the suit so far as first respondent is concerned since there was no responsibility for the first respondent to get the legal heirs of deceased appellants/defendants impleaded in the Second Appeal. Plea of limitation has also been met by the learned Munsiff relying on the date of the appellate decree in which the decree of the trial court merged. 4. What remained is only whether in view of the decree in O.S. No.430 of 2006 first respondent is entitled to execute the decree in O.S. No.105 of 1980 and whether contention of petitioner that if the decree in O.S. No.105 1980 is executed first respondent will get more extent than he is entitled to get is sustainable? So far as the second limb of the contention, it is not the concern of petitioner whether first respondent would get more extent than to which he is entitled. First respondent is entitled to execute the decree in O.S. No.105 of 1980 as the decree schedule provides. The mere fact that subsequently petitioner filed O.S. No.430 of 2006 and obtained a decree against first respondent against trespassing into the property of petitioner O.P(C) No.3589 of 2011 -: 4 :- does not prevent the first respondent from getting the decree in O.S. No.105 of 1980 executed. 5. I also find from the order under challenge that learned Munsiff has referred to the decree in O.S. No.105 of 1980 and Ext.C2(a) plan appended to it where the properties have been properly identified and boundary line also has been fixed. I am certain that learned Munsiff has directed execution of the decree based on Ext.C2(a) plan which forms part of the decree. 6. Learned counsel submitted that the executing court has not appointed an Advocate Commissioner to execute the decree and instead, only a Surveyor has been appointed. If that is the grievance of petitioner that can be redressed by directing the executing to appoint an Advocate Commissioner along with the Surveyor (already appointed) to execute the decree in accordance with Ext.C2(a), plan which is appended to the decree. Original Petition is disposed of directing the learned Principal Munsiff, Thiruvananthapuram to appoint an Advocate Commissioner also (along with the Surveyor already appointed) at the expense of first respondent to execute the decree in O.S. No.105 of 1980. THOMAS P. JOSEPH, JUDGE. vsv