IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 CRP.No. 661 of 2009 --------------------- AGAINST THE ORDER DATED 14/07/2009 IN EP.228/1999 IN OS.137/1989 of PRINCIPAL MUNSIFF COURT,ALAPPUZHA .................... REVN. PETITIONER/DECREE HOLDER/PLAINTIFF: --------------------------------------------------- JOSEPH, S/O.JOSEPH, PALLIMUTTAM VEEDU, THATHAMPALLY WARD, ALAPPUZHA. BY ADV. MR.K.S.HARIHARAPUTHRAN MR.M.D.SASIKUMARAN MR.GEORGE MATHEW RESPONDENTS/RESPONDENT/JUDGMENT DEBTOR: ----------------------------------------- 1. PREMADASAN, THANDUVELIL, THATHAMPALLY, ALAPPUZHA. (DIED). 2. SUBASH, S/O.PREMADASAN, THANDUVELIL, THATHAMPALLY, ALAPPUZHA. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.661 of 2009 --------------------------------- Dated this the 16th day of December, 2009 O R D E R Revision is directed against an order passed by the learned Principal Munsiff, Alappuzha, in the execution proceedings in E.P.No.228 of 1999 in O.S.No.137 of 1989. Plaintiff/decree holder in the above suit is the revision petitioner. Suit was compromised by the parties and a compromise decree was passed by which the southern boundary of the plaintiff’s property was fixed as the XY line as determined by the commissioner in Ext.C2 plan. C2 plan was also appended to the decree. No decree other than fixation of the boundary as indicated above was granted on the basis of the terms of compromise entered by the parties. Pursuant to that compromise decree, decree holder/plaintiff put up boundary stones on XY line as shown in C2 plan after refixing such line with the assistance of Taluk Surveyor. The petitioner, after fixation of that XY line, with the assistance of Taluk Surveyor, it is stated, put up fencing on that line. Judgment debtors thereupon filed an application, E.A.No.573 of 1999 to set aside the report of the Taluk Surveyor C.R.P.No.661 of 2009 2 and to depute the District Surveyor to measure the properties again for refixing the boundary and removal of the fencing erected on the basis of the measurement made by the Taluk Surveyor. The execution court considered the matter after collecting a report from the advocate commissioner. The commissioner reported that the boundary fixed by the Taluk Surveyor was not the one as shown in XY line in C2 plan. The execution court after taking evidence ordered for removal of the fencing and redelivery of the portion of the property which had been taken over from the judgment debtor. Removal of the fence and redelivery of the property then followed. Decree holder thereafter filed another application, E.A.No.190 of 2003 seeking appointment of a commissioner to measure the entire properties of the decree holder and judgment debtor with the assistance of the Taluk Surveyor for the purpose of fixing the southern boundary of his property and putting up a fence. The execution court again deputed the advocate commissioner who reported that there is no fencing on a portion of the XY line in C2 plan. In the light of that report, the execution court passed the C.R.P.No.661 of 2009 3 impugned order that the portion where there is no fencing the decree holder by taking steps for appointment of a commissioner can put up fencing through court. Correctness of that order is impeached in the revision by the decree holder contending that there was no proper fixation of XY line by the advocate commissioner and the court below went wrong in passing an order that only a portion where there is no fence alone, fencing can be made under the supervision of an advocate commissioner. 2. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents/judgment debtors is necessary and it is dispensed with. 3. The learned Munsiff, it appears, has not considered the executability of the decree passed in the suit which is sought to be executed. Learned counsel for the petitioner handed over to me a copy of the decree for my perusal. I find the decree that is granted is only for fixing of the southern boundary of the decree holder's property as XY line shown in C2 plan prepared by the C.R.P.No.661 of 2009 4 advocate commissioner on the basis of the compromise entered by the parties. No other executable decree is granted. When that be so, the exercise taken for executing that decree where there is nothing to be executed as the decree fixed the southern boundary of the plaintiff’s property as XY line in C2 plan, by the execution court is totally unwarranted. Now, that the mischief caused in execution of the decree allowing the fencing of the boundary on refixing XY line with the assistance of the Taluk Surveyor had been undone on the application moved by the judgment debtors nothing more require to be done by the execution court. The impugned order in the revision is set aside directing the learned Munsiff to reexamine the whole question with reference to the compromise decree which is sought to be executed in the execution petition, and pass appropriate orders in accordance with law. Revision is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-