IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 OP(C).No. 1652 of 2011(O) ------------------------- OS.187/2008 of PRINCIPAL MUNSIFF COURT, KOCHI .................... PETITIONERS (S): -------------------- 1. SHANAWAS, AGED 28 YEARS, S/O.RAFEEK, RESIDING AT C.C.7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU, KOCHI-2. 2. IYSHA NAZAR, W/O.NAZAR, RESIDING AT C.C.7/1080 A, DARUSALAM ROAD, KOCHI-2. BY ADV. SRI.P.SATHISAN RESPONDENT(S): --------------- 1. MOHAMMED ASHRAF, AGED 51 YEARS, S/O.ZAINUDEEN, RESIDING AT CC 7/1080 B, DARUSALAM ROAD, KAPPALANDIMUKKU, KOCHI-2. 2. RAFEEK, AGED 52 YEARS, S/O.UMMER, RESIDING AT CC 7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU, KOCHI-2. 3. RAMALA RAFEEK, AGED ABOUT 48 YEARS, W/O.RAFEEK, RESIDING AT CC 7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU, KOCHI-2. 4. YASAR ARAFATH, AGED ABOUT 30 YEARS, S/O.RAFEEK, RESIDING AT CC 7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU, KOCHI-2. 5. SAMJAD, AGED ABOUT 24 YEARS, S/O.RAFEEK, RESIDING AT CC 7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU, KOCHI-2. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------- O.P.(C).No.1652 of 2011 --------------------------------------- Dated this the 24th day of May, 2011 JUDGMENT Judgment debtors 4 and 6 in E.P.No.13 of 2011 in O.S.No.187 of 2008, Munsiff's Court, Kochi are aggrieved by the order dated 8th April, 2011 (Exhibit P7). 2. The suit was for mandatory injunction directing the defendants to dismantle and remove the plaint 'C' schedule from the plaint B schedule property. There was also a prayer for prohibitory injunction. The suit was decreed on 31st January, 2009. 3. The plaint schedule property belongs to the plaintiff. It was alleged that on the eastern side of the plaint A schedule property there was a compound wall. That was not disputed at the trial stage. There was no dispute O.P.(C) No.1652/2011 2 regarding the extent or identity of the plaint A schedule. The Commissioner's plan and report were marked in the suit. The suit was decreed on the basis of the identification made by the Commissioner. In execution, the petitioners raised a contention that the plaint A schedule property should be measured and its eastern boundary fixed before executing the decree. That contention was negatived by the executing court holding that if the contention is accepted, it would have the effect of re-opening the decree and conducting a fresh trial. The court below did not allow the petitioners to raise such a contention by way of filing a work memo to the Commissioner who was appointed in the execution proceedings. It was held by the court below that the Commissioner need not consider this aspect. The court below also issued certain directions for executing the decree. 4. The order passed by the court below is legal and proper. The contentions raised by the petitioners cannot be O.P.(C) No.1652/2011 3 countenanced at this stage. If their contention is that the eastern boundary of the plaint A schedule property is not correctly located, they should have raised that contention at the trial stage or they should have filed an appeal against the decree. Such a contention cannot be raised in execution. For the aforesaid reasons, the Original Petition is dismissed. K.T.SANKARAN JUDGE csl