IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WP(C).No. 5613 of 2008(R) ------------------------- AGAINST THE ORDER DATED 04/12/2007 IN EP.744/1990 IN OS.141/1974 of PRL.M.C.,NEYYATTINKARA .................... PETITIONERS: ---------------- 1. SILOMONY NADAR YESUDAS 2. SARASWATHY SANTHA, BOTH ARE RESIDING AT MANCHADI, PARASICKAL P.O., PARASSALA (VIA) THIRUVANANTHAPURAM. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------------ 1. PARAMANANDAM NADAR NESAMANY, RESIDING AT MANCHADI MEKKARAKU PUTHEN VEEDU, PARASICKAL P.O.,PARASSALA (VIA) THIRUVANANTHAPURAM. 2. MASILAMANY NADAR THANKAYYAN, RESIDING AT MARUTHARAKKAL VEEDU, PARASICKAL P.O., PARASSALA VIA, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.5613/2008 2 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 31.8.2006. EXT.P2: COPY OF THE JUDGMENT IN W.P.(C).No.29473/2006 ON THE FILE OF THIS HONOURABLE COURT DATED 5.1.2007. EXT.P3: COPY OF THE ORDER IN E.P.No.744/90 IN O.S.No.141/74 ON THE FILE OF THE COURT OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA DATED 4.12.2007. RESPONDENTS EXHIBITS: EXT.R1(a): COPY OF THE COMMON JUDGMENT IN S.A.188/01 & CRP 1061/2002 DATED 26.9.2003. EXT.R1(b): COPY OF THE JUDGMENT IN W.P.(C).28154/05 DATED 3.10.2005. TRUE COPY P.A.TO JUDGE M.SASIDHARAN NAMBIAR, J ====================== W.P.(C).No.5613 of 2008 ======================= Dated this the 29th day of May, 2008 JUDGMENT Petitioners are judgment debtors in O.S.141 of 1974 and decree holders in O.S.169 of 1989 on the file of Munsiff Court, Neyyattinkara. The decree in O.S.141 of 1974 is being executed in E.P.No.744 of 1990. The decree in O.S.141 of 1974 is declaration of title and putting up of boundaries. Though a decree for injunction in O.S.169 of 1989 was granted in favour of the petitioners, in Ext.R1(a) judgment in S.A.188 of 2001 against the decree in O.S.No.169 of 1989 which was disposed of along with CRP.No.1061 of 2002, filed by the petitioners herein challenging the execution proceedings in E.P.744 of 1990, this Court specifically clarified that the decree granted in O.S.169 of 1989 “ shall under no circumstances enable the plaintiffs in O.S.169 of 1989 to recover any portion of the decree schedule property in O.S.141 of 1974 including the actual situs of the boundary wall which has been put up or is going to be put up in execution of that decree and also to tamper or meddle in any W.P.(C).No.5613/2008 2 manner with that boundary”. While directing expeditious disposal of the execution proceedings in O.S.141 of 1974, this Court directed the Executing Court to keep in abeyance the execution proceedings in O.S.No.169 of 1989 so that the decree in O.S.141 of 1974 can be executed prior to that. 2. Petitioners are challenging Ext.P3 order passed by the Executing Court where under, Commissioner was directed to fix the boundary in accordance with Ext.C2 plan. The argument of learned Senior Counsel appearing for petitioners is that even though in the light of the clarifications and the directions in Ext.R1(a) judgment in the second appeal, petitioners are not entitled to challenge the executability of the decree or the right of the decree holding in O.S.141 of 1974 to put up the boundary, Executing Court may be directed to put up a permanent boundary only after identifying the decree schedule property in O.S.No.169/1989. On the facts as unveiled in Ext.R1(a) judgment, I do not find that any purpose will served by delaying the putting up of the permanent boundary as submitted by the Senior Counsel. Even though a decree for injunction was granted in the subsequent suit O.S.169 of 1989, this Court under W.P.(C).No.5613/2008 3 Ext.R1(a) judgment in the second appeal filed against the judgment unambiguously clarified that under no circumstances the decree holder in O.S.No.169 of 1989, is entitled to claim any portion of the property including the situs of the boundary wall of the decree schedule property in O.S.No.141 of 1974 put up or to be put up. It is to enable the decree holder to put up the boundary as granted in the decree in O.S.No.141 of 1974, this Court directed the executing Court to keep in abeyance the execution proceedings in O.S.No.169 of 1989 for one year. Even if for arguments sake it is to be found that the decree schedule property of O.S.No.169 of 1989 overlaps the decree schedule property in O.S.141 of 1974, petitioners are not entitled to claim even an inch of the decree schedule property in O.S.No.141 of 1974 in view of the specific clarification given in Ext.R1(a) judgment. Petitioners are entitled to claim only the remaining property excluding the property covered under decree in O.S.No.141 of 1974 including the situs of the boundary wall put up or to be put up. Therefore, I find no illegality or irregularity in Ext.P3 order passed by the learned Munsiff. There is no necessity to delay the putting up of the permanent boundary wall W.P.(C).No.5613/2008 4 of the decree schedule property in O.S.No.141 of 1974. This petition is dismissed accordingly. M.SASIDAHRAN NAMBIAR, JUDGE dvs