IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 11711 of 2010(O) -------------------------- OS.319/1997 of MUN-MAGI COURT, SASTHAMCOTTA .................... PETITIONER(S): --------------- 1. BHASKARA PILLAI ,PULLAMPALLIL VEEDU KIZHAKE MURI, KUNNATHOOR VILLAGE, KOLLAM. 2. RAJENDRAN PILLAI S/O.RAMACHANDRAN PILLAI, KATTOOR PUTHEN VEEDU EDAKKADU MURI, PORUVAZHY VILLAGE. 3. RAJESH S/O.RAMACHANDRAN PILLAI, KATTOOR PUTHEN VEEDU EDAKKADU MURI, PORUVAZHY VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): --------------- 1. THULASEEDHARAN PILLAI CHEMPAKASSERIL VEEDU, EAST MURI,KUNNATHOOR VILLAGE 2. SANKARA PILLAI, DO...DO.. 3. MADHAVAN PILLAI DO...DO.. 4. SUKUMARA PILLAI DO..DO.. 5. RADHAMMA DO...DO.. 6. CHANDRAN PILLAI DO..DO.. 7. SREEDEVI DO..DO.. W.P.(C) No.11711 of 2010 : 2 : 8. SARASWATHI DO...DO.. BY ADV. SRI.N.UNNIKRISHNAN FOR R1, R2,3,4,5,6,7,8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.11711 of 2010 EXT.P1 TRUE COPY OF THE JUDGMENT IN A.S.No.178 of 2005 BEFORE THE DISTRICT COURT KOLLAM DATED 3.2.2007. EXT.P2 TRUE COPY OF THE EXT.C2(a) PLAN APPENDED TO THE DECREE IN A.S.NO.178 OF 2005 BEFORE THE DISTRICT COURT, KOLLAM AND THE COMMISSION REPORT AND MAHAZAR THEREON. EXT.P3 TRUE COPY OF THE EXECUTION PETITION IN E.P.NO.59 OF 2008 IN O.S.NO.319 OF 1997 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P4 TRUE COPY OF THE OBJECTION TO EXECUTION PETITION IN E.P.NO.59 OF 2008 IN O.S.NO.319 of 1997 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P5 TRUE COPY OF REPORTS OF COMMISSION DATED 16.7.2009. EXT.P6 TRUE COPY OF THE REPORTS OF COURT AMIN DATED 15.7.2009. EXT.P7 TRUE COPY OF OBJECTION TO THE COMMISSION REPORT AND THE REPORT OF THE AMIN PRAYING TO SET ASIDE THE SAME FILED IN E.P.59 OF 2008 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P8 TRUE COPY OF THE OBJECTION DATED 6.10.2009 TO EXT.P7FILED BY THE RESPONDENTS IN E.P.NO.59 OF 2008 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P9 TRUE COPY OF PETITION IN E.A.NO.75/09 IN E.P.59 OF 2008 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P10TRUE COPY OF OBJECTION TO THE PETITION IN E.A.NO.75/09 IN E.P.NO.59 OF 2008 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P11TRUE COPY OF PETITION IN E.A.NO.76/09 IN E.P.NO.59 OF 2008 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P12TRUE COPY OF OBJECTION TO THE PETITION IN E.A.NO.76/09 IN E.P.NO.59 OF 2008 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P13TRUE COPY OF ORDER IN E.A.NO.75/09 IN E.P.59 OF 2008 DATED 17.12.2009 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P14TRUE COPY OF ORDER IN E.A.NO.76/09 IN E.P.NO.59 OF 2008 DATED 17.12.2009 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P15TRUE COPY OF ORDER IN E.P.NO.59 OF 2008 DATED 17.12.2009 BEFORE THE MUNSIFF COURT, SASTHAMCOTTA. EXT.P16TRUE COPY OF PLAN PREPARED WITH THE SURVEYOR BY PETITIONER. //TRUE COPY// P.S. TO JUDGE. V.CHITAMBARESH, J. ------------------------------- W.P.(C) No.11711 of 2010 ------------------------------- Dated this the 24th day of November, 2011 J U D G M E N T The question relates to the execution discharge or satisfaction of an appellate decree under Section 47 of Civil Procedure Code. The appellate court has in modification of the trial court decree directed the property to be identified. The suit of injunction and the counter claim for fixation of boundary is partly decreed by the lower appellate court. The plaintiff has a contention that the demarcation by the Amin in execution of the decree is not proper. 2. The plaintiff under these circumstances filed E.A.No.769 of 2009 for appointing an Advocate Commissioner. That application was dismissed by Ext.P14 order and E.A.No.75 of 2009 filed under Section 47 of Civil Procedure Code is also consequently dismissed. The petitioners have a grievance that they were unable to lead the evidence after obtaining the report of the Advocate Commissioner as regards wrong demarcation. There has been no proper consideration of the contentions of either parties in Exts.P14 and P15 orders consequently passed. W.P.(C) No.11711 of 2010 2 3. I, therefore, set aside Exts.P13, P14 and P15 orders and direct the court below to issue a Commission. The parties are entitled to adduce evidence after obtaining the report of the Commissioner as to whether the demarcation of the property by the Amin in execution of the decree is proper or not. It is open to the petitioners to raise all their contentions including the alleged cutting of trees itself standing in the disputed property. The court below is directed to dispose of all these applications within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. V.CHITAMBARESH, Judge. nj. V.CHITAMBARESH, J. -------------------------------------- W.P.(C) No. 11711 of 2010 JUDGMENT Dated:- 24th November, 2011 --------------------------------------