IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 WP(C).No. 32363 of 2007(C) -------------------------- AGAINST THE ORDER IN EA.115/2007, EP.125/2006 IN OS.133/1989 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONERS: ------------ 1. DANIEL, RESIDING AT CHARUVILA PUTHEN VEEDU, UMMANNOOR MURI, UMMANNOOR VILLAGE, KOLLAM DISTRICT. 2. APPEY DAISY, RESIDING AT CHARUVILA PUTHEN VEEDU, UMMANNOOR MURI, UMMANNOOR VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENT: ------------- N.VIKRAMAN, PUTHENVILA VEEDU, CHITTAIKOTTU MURI, NAVAIKULAM VILLAGE CHIRAYINKIL TALUK. BY ADV. SRI.C.V.VASUDEVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 32363 OF 2007 = = = = = = = = = = = = = = = Dated this the 12th day of March, 2008. J U D G M E N T This writ petition is preferred to set aside Ext.P8 order whereby the executing Court has appointed a Commissioner to identify and locate the correct boundaries of the plaint schedule property. The brief facts necessary would reveal that the plaintiff in the suit O.S.133/89 had obtained a decree for declaration and injunction with respect to the plaint schedule property as early as on 2.1.93. Subsequently the present execution petitioners have come into possession of the property by virtue of the transfer of the property in favour of them. 2. Meanwhile there was a suit filed by the present writ petitioner for specific performance of the contract and there was also a counter claim filed by the respondents in this writ petition for a mandatory injunction. In the said suit the Court found that the writ petitioner is not entitled to any W.P.C 32363 OF 2007 -:2:- decree for specific performance and also held that the prayer in the counter claim to have demarcating the boundary also cannot be allowed. Thus the suit and the counter claim were dismissed by a judgment dated 17.7.2004. Now an application is filed with lots of prayers one for punishing the respondents for violating the decree and the other is for appointment of a surveyor and Commissioner to demarcate the boundaries between the properties and the Court below has allowed that prayer. 3. I am afraid whether the executing Court can cross the limits of the decree and do further in execution of a decree. When a decree for declaration and injunction is granted whereby the Court only protects the possession of the property of the person and when the very same person knowing the limitation of the decree moves the Court in the form of a counter claim for demarcating the property and constructing boundary and loses the same and allows it to become final, turns round and files an application in the form of Order 21 Rule 32 of CPC to hold that a demarcating boundary has to be constructed for the preservation of the decree. I am afraid that in none of the decisions the Court W.P.C 32363 OF 2007 -:3:- has taken into consideration which is the demarcating boundary of the property. Therefore in an attempt to execution of a decree under Order 21 Rule 32(5) violation of injunction decree the Court is not expected to fix the demarcating boundaries and proceed with the matter. It is true if there is violation of the decree of the Court regarding the acts of possession then certainly the Court is competent to look into it under Order 21 Rule 32(5). Therefore the order of the learned Munsiff that the Commissioner has to be appointed to fix the boundaries to demarcate the properties is not in tune or in compliance with the decree passed by the civil Court in the suit O.S.133/89. Therefore the order under challenged is set aside. But so far as with respect to the violation of injunction, certainly the executing Court can proceed to dispose of the matter in accordance with law. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-