IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 15383 of 2009(O) --------------------------------------- OS.NO.30/2001 OF ADDL.MUNSIFF COURT, KOLLAM. .................... PETITIONER: ------------------- A.ASANARUKUNJU, KANNIMEL THUNDIL VEEDU, NELLARIMOOLAVILA, MUTTACKAVU, NEDUMPANA, KOLLAM. BY ADV. MR.B.SURESH KUMAR. RESPONDENT: ---------------------- M. BASHEER, PARAYAVILA VEEDU, MUTTACKAVU, NEDUMPANA, KOLLAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.15383 of 2009 - O --------------------------------- Dated this the 15th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: “i) To call for the entire records of O.S.No.30/2001 on the files of the Additional Munsiff Court, Kollam and set aside Ext.P4 order to the extent of directing the Advocate Commissioner not to cut down any trees in the Counter Claim C schedule pathway. ii) To call for the entire records of O.S.No.30/2001 on the files of the Additional Munsiff Court, Kollam and direct the Advocate Commissioner appointed by the court below to execute the decree as provided in Ext.P1 decree.” 2. Petitioner is the defendant in O.S.No.30/2001 on the file of the Additional Munsiff Court, Kollam. The above suit was filed for a decree of perpetual prohibitory injunction by the respondent/plaintiff, in which the petitioner/defendant had raised a counter claim. Suit was dismissed, but, the counter claim was allowed by the court after trial. Counter claim was moved by the W.P.(C).No.15383 of 2009 - O 2 defendant for removal of the obstruction over a pathway which was described as “C schedule” in the plaint. Pursuant to the decree passed by the court upholding the counter claim raised by the defendant, execution proceeding were taken by him stating that despite the decree granted the respondent/plaintiff has not removed the obstruction over the pathway. An application for appointment of an advocate commissioner was also sought for by the decree holder/defendant to remove the obstruction over the pathway. In the application for appointment of the commissioner, copy of which is produced as Ext.P2, decree holder sought for cutting down the trees also situate in the pathway, over and above, the demolition of a portion of wall which is alleged to have been constructed by the respondent/plaintiff encroaching upon the pathway. The respondent/judgment debtor filed objections contending that the decree does not provide for cutting down of trees from the pathway. The learned Munsiff after hearing the counsel on both sides and scrutinizing the decree sought to be executed, passed Ext.P4 order holding that the decree does not provide for cutting down trees in the W.P.(C).No.15383 of 2009 - O 3 pathway and as such the relief sought thereof by the decree holder empowering the commissioner to cut down the trees cannot be granted. Correctness and propriety of that order is impeached in this writ petition by the petitioner/decree holder invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. 4. A copy of the written statement filed by the petitioner in the suit has been produced for my perusal. Perusing the decree granted by the court below with reference to the written statement filed by the petitioner/defendant in the suit, I find that obstruction to the pathway on account of trees situate therein was never presented, agitated or adjudicated in the suit. The execution court cannot go beyond the decree and it has to execute the decree as it is. When there was no adjudication in the suit whether any obstruction in the pathway was caused by the trees situated therein, but the obstruction imputed was only encroaching upon a pathway by construction of a compound wall by the plaintiff/respondent in the writ petition, after passing of a W.P.(C).No.15383 of 2009 - O 4 decree directing for removal of the obstruction, the execution court is incompetent to give any direction to the commissioner or to any other person to cut down the trees situate in the pathway. I do not find any impropriety or illegality in Ext.P4 order passed by the learned Munsiff in holding that no direction can be issued to the commissioner to cut down the trees situate in the pathway. The writ petition is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-