IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 22423 of 2009(O) --------------------------------------- OS.246/1996 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER(S): IST JUDGEMENT DEBTOR -------------------------- FRANKO C.L., S/O.CHIRAMMAL LAZAR, NAMBAZHIKKAD DESOM, KANDANASSERY VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADVS. MR.RAJIT MR.RANJIT BABU RESPONDENT(S): DECREE HOLDER ---------------------------- BETTY, W/O.CHIRAMMAL DAVIS, NAMBAZHIKKAD DESOM, KANDANASSERY VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.22423 OF 2009 -------------------------- Dated this the 7th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Set aside the order dated 13.07.2009 in E.A No.557/2009 in E.P No.670/2001 in O.S No.246/1996 of the Munsiff Court, Chavakkad. ii) Direct the Munsiff Court to depute the same advocate commissioner who prepared Ext.C2 plan to fix the boundary at the stage of execution. iii) Grant such other relief deemed fit to this Hon'ble Court. W.P.(C).No.22423 OF 2009 Page numbers 2. Petitioner is the judgment debtor in E.P No.670 of 2001 in O.S No.246 of 1996. Respondent is the decree holder. The above suit was one for fixation of boundary and for mandatory injunction to remove an obstruction alleged to have been caused by the petitioner / judgment debtor blocking a way. Suit was decreed. Fixation of the boundary was sought in respect of the northern boundary of the plaint property. On the eastern end of that boundary it was blocked by the defendant preventing the plaintiff / decree holder from having access to a pathway leading to a road situate on the eastern side was his case. On the trial side, an advocate commissioner with the assistance of a Village Officer conducted a local inspection, measured the propertiy and filed a report and plan. Ext.C1 is the report and Ext.C2 the plan. Petitioner / defendant resisted the suit claim contending that he had not blocked or caused W.P.(C).No.22423 OF 2009 Page numbers any obstruction as alleged by the plaintiff. The decree in the suit was passed by Ext.P3 judgment dated 28/07/2001. Alleging that the judgment debtor has not removed the obstruction the decree holder filed the E.P seeking the aid of the court to enforce the decree. The judgment debtor filed Ext.P5 objections contending that he had complied with the decree and whatever obstruction or block existed earlier had been removed. A commission was deputed by the court to examine the merit of the objections canvassed, whether the decree has been complied by the judgment debtor by removing the block to the pathway. That commissioner reported that he could not identify the northern boundary with reference to the Ext.C2 plan. To that report the judgment debtor filed objections seeking an inspection by the commissioner who prepared the earlier Ext.C1 report and Ext.C2 plan to furnish a fresh report as to whether the blockage had been W.P.(C).No.22423 OF 2009 Page numbers removed in compliance of the decree. However the execution court appointed another advocate commissioner and also directed the Taluk Surveyor to render assistance to that commissioner. The commissioner measured the property with the assistance of the Taluk Surveyor and determined matters sought for by both parties. Ext.P9 report and also a plan, after measuring the property, were filed. To that report and plan, the judgment debtor filed objections. Copy of that objection is Ext.P10. The learned Munsiff after hearing both sides accepted the report and plan prepared by the commission deputed in the execution proceedings negativing the objections raised by the judgment debtor. Ext.P11 is the copy of that order. Pursuant there to, after hearing both sides, the learned Munsiff passed Ext.P12 order directing for removal of the obstruction as noted in Ext.A1 plan prepared in the execution proceeding. Propriety W.P.(C).No.22423 OF 2009 Page numbers and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The attack pressed into service by the learned counsel for the judgment debtor is that Ext.A1 plan prepared in the execution proceedings is materially and substantially different from Ext.C2 plan prepared on the trial side and, so much so, the direction given by the execution court to remove the obstruction with reference to Ext.A1 plan discarding Ext.C2 plan is erroneous and unsustainable in law. On the other hand, the learned counsel for the decree holder inviting my attention to the earlier orders passed in the execution proceedings and more particularly Ext.P11 order which has become final without any challenge W.P.(C).No.22423 OF 2009 Page numbers from the judgment debtor submitted that the execution court is bound to execute the decree and if at all there is any mistake or correction in the measurement shown in Ext.C2 plan it is duty bound to rectify that mistake and enforce the decree. As regards the northern boundary fixed in Ext.C2 plan it is seen after a fresh plan was prepared with the assistance of a Taluk Surveyor in the execution proceedings a discrepancy was noted in Ext.C2 plan. The northern boundary was shown having 69 links whereas measurement taken with the assistance of Taluk Surveyor showed it is having only 59 links. 4. Fulcrum of controversy is related only to the blockage alleged to have been made by the judgment debtor on the eastern end of the northern boundary preventing the decree holder from having access to a pathway leading to the road on the eastern side. Specific contention taken by W.P.(C).No.22423 OF 2009 Page numbers the judgment debtor resisting the execution of the decree is that he had removed that obstruction. It was found to be not correct and the blockage still continues. So much so, the discrepancy with respect to the measurement in Ext.C2 plan and also with that of Ext.A1 plan prepared in execution has little significance. The execution court is bound to enforce the decree. It cannot raise its hands in helplessness and drive the decree holder to go for another round of litigation for the reason that there is some discrepancy in the plan prepared on the trial side. The learned Munsiff after meticulous consideration of the disputes involved and taking note of the discrepancy over the side measurement of the northern boundary of the property when the measurement was again taken preparing Ext.A1 plan by the Taluk Surveyor, has arrived at the conclusion that Ext.A1 plan has to be preferred. The decree sought to be executed in W.P.(C).No.22423 OF 2009 Page numbers the context it has to be pointed out despite passing of the mandatory injunction remain unenforced for the last 18 years. Decree is one for mandatory injunction is also a material circumstance in adjudging the merit of the objections raised. Where it is established that, the judgment debtor has not complied with the decree so far I do not find any merit in the writ petition, and, it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv