IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 CRP.No. 188 of 2010() ------------------------------- AGAINST THE ORDER DATED 23/02/2010 IN EP 90/2009 IN OS.224/1991 of MUN-MAGI COURT, SASTHAMCOTTA .................... REVN. PETITIONER(S): IST DECRE HOLDER/PLAINTIFFS ----------------------------------------------------------------------------- KOCHUKUNJU YOHANNAN, MACHAMMUTTATHU VEEDU, KOTHAPURAM MURI, WEST KALLADA VILLAGE. BY ADV. SRI.K.G.ANIL BABU SRI.A.SHANAVAS RESPONDENT(S): JUDGMENT DEBTORS/DEFENDANTS ------------------------------------------------------------------------------- 1. VASU YOGADASAN,RAJESH BHAVANAM, KOTHAPURAM MURI, WEST KALLADA VILLAGE. 2. RADHA,D/O.PANKAJAKSHI,RAJESH BHAVANAM, KOTHAPURAM MURI, WEST KALLADA VILLAGE. R1 & R2 BY ADV. SRI.K.SUBASH CHANDRA BOSE THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss CRP. NO.188/2010 APPENDIX PETITIONER'S ANNEXURES A1:- COPY OF THE JUDGMENT IN AS. 119/2000 DTD. 13.3.2007 AII:- COPY OF THE EXECUTION PETITION IN EP. 90/09. RESPONDENT'S ANNEXURES NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== C.R.P. No.188 of 2010 ==================================== Dated this the 21st day of October, 2011 O R D E R First plaintiff-first decree holder in O.S. No.224 of 1991 of the court of learned Munsiff-Magistrate, Sasthamcotta challenges the order dated 23.02.2010 whereby the execution petition was dismissed. 2. Petitioner obtained a decree in the above suit declaring right of easement of lateral support to the plaint A schedule and a decree for prohibitory injunction restraining respondents from removing earth or changing the lie and nature of plaint B schedule. The decree was passed in the year 1995. Respondents filed O.S. No.286 of 1997 for a declaration that the decree in O.S. No.224 of 1991 is null and void and for consequential reliefs. They alleged that petitioner had trespassed into a portion of the property belonging to them. The trial court decreed the suit against which petitioner preferred appeal as A.S. No.119 of 2000 in the court of learned First Additional District Judge, Kollam. Learned District Judge disposed of that appeal by remand with certain directions. O.S. No.286 of 1997 is still pending consideration in the trial court, it is submitted by both C.R.P. No.188 of 2010 -: 2 :- sides. In the meantime petitioner filed E.P. No.90 of 2009 to execute the decree in O.S. No.224 of 1991. That was resisted by the respondents contending that the decree is not executable, at any rate before O.S. No.286 of 1997 is disposed of. That objection prevailed with the executing court which dismissed E.P. No.90 of 2009 as per order dated 23.02.2010. 3. Learned counsel for petitioner contends that whatever be the outcome of O.S. No.286 of 1997 so far as the decree in O.S. No.224 of 1991 stands it is to be executed. It is also submitted that even if O.S. No.286 of 1997 is decreed that will not in any way come in conflict with the decree in O.S. No.224 of 1991 if executed. 4. Learned counsel for respondents would contend that the whole issue is to be thrashed out in O.S. No.286 of 1997 since respondents have a case that petitioner has trespassed into a portion of the property belonging to them. 5. I have been given a copy of judgment in A.S. No.119 of 2000 referred above. I stated a little above that in O.S. No.286 of 1997 the trial court had granted a decree in favour of the respondents declaring that the decree in O.S. No.224 of 1991 as null and void and granting other reliefs. On a perusal of the C.R.P. No.188 of 2010 -: 3 :- judgment in A.S. No.119 of 2000 it appears and that is not seriously disputed before me by the learned counsel on both sides also that the appellate court did not sustain the decree in O.S. No.286 of 1997 declaring the decree in O.S. No.224 of 1991 as null and void but thought that a remand of O.S. No.286 of 1997 is required for a proper measurement of the property. In the operative portion of the judgment learned District Judge has observed that the decree and judgment in O.S. No.286 of 1997 is to be set aside, the entire properties are to be measured afresh based on the plan annexed to Ext.B6, decree (i.e., the decree in O.S. No.224 of 1991) and that in the circumstance the case is remitted to the trial court for fresh decision with a direction to measure the properties afresh on the strength of title deeds of parties and plan annexed to the decree in O.S. No.224 of 1991. Learned District Judge hastened to add that as the boundary is already fixed, measurement is required only for ascertaining the location of C schedule property (referring to O.S. No.286 of 1997). The court has to find out whether there is trespass of plaint A schedule property (O.S. No.286 of 1997) after the decree in O.S. No.224 of 1991. It is not disputed that properties belonging to the petitioner and respondents have a common boundary and it is C.R.P. No.188 of 2010 -: 4 :- in that view of the matter that petitioner has claimed lateral support to his property from the property of respondents. It is while so that respondents claimed that petitioner trespassed into a portion of the property belonging to them. That question is yet to be decided in O.S. No.286 of 1997. Without deciding that, it may not be possible to effectively execute the decree in O.S. No.224 of 1991 for providing lateral support. For that the executing court may have to fix boundary of the property and if any portion of the property belonging to the respondents is allegedly trespassed by petitioner, that may create problems in executing the decree. Viewed in that line appropriate course appears to be to wait until the final decision in O.S. No.286 of 1997 to request to execute the decree in O.S. No.224 of 1991. 6. I am aware that the decision in O.S. No.286 of 1997 may take sometime and if E.P. No.90 of 2009 (in O.S. No.224 of 1991) is dismissed as learned Munsiff has done, probably at a later point of time when petitioner tries to execute the decree in O.S. No.224 of 1991 after the decision in O.S. No.286 of 1997 objection as to the executability of the decree in O.S. No.224 of 1991 based on limitation might arise. To void such contention the appropriate course is to direct that instead E.P. No.90 of 2009 C.R.P. No.188 of 2010 -: 5 :- being dismissed, it will remain closed so that, after O.S. No.286 of 1997 is decreed, if petitioner is otherwise entitled it will be open to him to seek revival of E.P. No.90 of 2009 and continue the execution proceedings already initiated. Civil Revision is allowed as follows: (a) The order dated 23.02.2010 in E.P. No.90 of 1997 in O.S. No.224 of 1994 is modified to the extent that instead of the execution petition being dismissed, it is directed that the execution petition will stand closed so that as observed earlier it will be open to the petitioner to seek revival of E.P. No.90 of 2009 and proceed with it as provided under law. (b) The parties or any of them request the court which is dealing with O.S. No.286 of 1997 for expeditious disposal of that suit and if any such request is made the court concerned shall consider the same having C.R.P. No.188 of 2010 -: 6 :- regard to the fact that the decision in that suit may have a bearing on the decree in O.S. No.224 of 1991 also and dispose of the suit as early as possible. All pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv