IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 WP(C).No. 26895 of 2008(B) -------------------------- AGAINST THE ORDER DATED 29.8.2008 IN EA 180/08 &188/08 IN EP 389/07 IN OS.303/1999 OF MUNSIFF COURT, CHALAKUDY .................... PETITIONER:2ND JUDGEMENT DEBTOR -------------------------------- BHARATHIAMMA W/O. KORAVANGATTU KRISHNANKUTTY MENON, MECHIRA, KODASSERY P.O. THRISSUR DT. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENTS: DECREE HOLDER -------------------------- MALATHI AMMA W/O. MUNDIYATHVEETTIL, (MADHAVAM) MADHUSOODHANA MENON, MEKKAD P.O. ALWAYE, ERNAKULAM DT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 26895 OF 2008 ------------------------------------------ Dated this the 4th day of September, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P19 and P20 orders passed by Munsiff, Chalakkudy. A decree for recovery of possession was passed in O.S.303 of 1999. Ext.P1 judgment shows that the decree was passed on 31.7.2002. The decree passed by Munsiff, Irinjalakkuda was subsequently transferred to Munsiff Court, Chalakkudy for execution. E.P.389 of 2007 was filed for taking delivery of the property. Under Ext.P4 order dated 28.2.2008, executing Court overruling the objections raised by the petitioner and other judgment debtors, who were impleaded as the legal heirs of deceased judgment debtor in the E.P., directed delivery of the property. Ext.P5 petition was filed by the decree holder for getting assistance of the Kodassery Village Officer to the Amin for the purpose of identifying the decree scheduled property. It was allowed. The Amin with the assistance of Village Officer, could not deliver the property after WP(C)26895/08 2 identification. Thereafter judgment debtors 2 to 5 filed E.A.69 of 2008 contending that there was an old building in the decree schedule property, where there used to be prayers, which was demolished and a residential building was constructed by the petitioner after availing a loan of Rs.8 lakhs and the value of the building is more than Rs.15 lakhs and they are entitled to get the value of improvements under the Kerala Compensation for Tenants Improvements Act. That was dismissed by the executing Court. Writ petition W.P(C)11538 of 2008 was filed challenging that order. Under Ext.P8 judgment, this Court dismissed the writ petition holding that if at all, remedy of the judgment debtors 2 to 5 is to file a separate suit and they are not entitled to get value of improvements in the execution petition. E.A.17 of 2008 was then filed by the decree holder for delivery of the decree schedule property having an extent of 25 cents including the madom, where the judgment debtors 2 to 5 claim that a residential building was constructed after demolishing the old building. Judgment debtors filed E.A.188 of 2008 to call the Village Officer as a witness, as the Village Officer has prepared a sketch, which shows that the decree schedule property does not include the residential building. Under Ext.P20 order, E.A.188 of 2008, filed by judgment debtors 2 to 5, WP(C)26895/08 3 was dismissed. Under Ext.P19 order the petition filed by the decree holder was allowed. This petition is filed under Article 227 of Constitution of India to quash those orders. 2. Learned counsel appearing for petitioner was heard. 3. The learned counsel argued that the decree holder is only entitled to take delivery of the property covered under the decree and when the Amin went to the property to deliver it with the assistance of Surveyor, it was found that decree schedule property does not include the residential building and a commission was also appointed. The commissioner has also found that the decree schedule property could only be the property which lies to the south of the road and to the east of the thodu, which does not include the residential building and therefore the direction given by the executing Court to deliver the property inclusive of the building is unsustainable. Learned counsel argued that when the property covered by the decree is within the boundaries shown therein, and that too with measurements, only that property could be delivered and the mistaken admission in Ext.P7 application filed by judgment debtors 2 to 5 cannot be a ground for giving delivery of some other property, which is not covered by the decree. 4. True, in execution of the decree, the decree holder WP(C)26895/08 4 can take possession of only the property directed to be delivered under the decree. The question is what is the property covered by the decree, which was allowed to be taken recovery of possession in the suit. The decree schedule property is the item No.1 of B schedule property of 1958 partition deed. There is no dispute on that aspect. The decree holder filed the suit claiming recovery of possession of that property from the possession of the defendant. Though identity was disputed in the suit, Ext.P1 judgment shows that Court overruling the objections found that the property is identifiable. When execution petition was filed and order for delivery was passed overruling the objections, judgment debtors 2 to 5 themselves filed Ext.P7 application. Ext.P7 application shows that the decree schedule property, which is item No.1 of the B schedule property of the partition deed, is inclusive of the building shown as madom. Description of item No.1 of the B schedule property also establishes that the property allotted as item No.1 therein was 25 cents inclusive of the madom. Therefore there cannot be any dispute with regard to the identity of the property because it is 25 cents inclusive of the madom. Ext.P7, the petition filed by judgment debtors 2 to 5 themselves, establish that that madom was used for prayers and it was subsequently demolished by them and additional WP(C)26895/08 5 works were made to that building and later the building was demolished and a new building was constructed. It is clear from Ext.P7 that judgment debtors 2 to 5 themselves have not disputed that the decree schedule property is inclusive of the building so constructed by them. Therefore petitioners are not now entitled to contend that the decree schedule property is not inclusive of the building. Under Ext.P19 order learned Munsiff only directed to deliver the decree schedule property inclusive of the building. 5. The argument of the learned counsel appearing for petitioner is that if the delivery is given, as directed in Ext.P19 order, the extent would be more than 25 cents covered by the decree and it will not tally with the measurements of decree schedule property shown therein. True, if the building is also to be included in the decree schedule property, the measurement of the property given in the decree may not tally. But when the property allowed to recover possession is inclusive of the madom, which admittedly was there in the decree schedule property, and it is after demolishing that structure a residential building was constructed, judgment debtors 2 to 5 are not entitled to contend that the decree schedule property does not include the said building. In such circumstances, I do not find WP(C)26895/08 6 any illegality or irregularity in Ext.P19 and P20 orders warranting interference. In view of Ext.P8 judgment petitioner is not entitled to claim value of building in the E.P. but only by filing a separate suit. 6. The learned counsel argued that in any case executing Court is to be directed to find out the exact place where the original madom was standing. When even according to judgment debtors 2 to 5, it was demolished long back and another building was constructed in that place, it is impossible to find where exactly the original building was situated. Only identifiable features is the existence of the present building, which according to the judgment debtors 2 to 5 was constructed in the place where the original building was standing. In such circumstance I do not find any necessity to give any direction. Writ petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-