IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 CRP.No. 1236 of 2005() ---------------------- AGAINST THE ORDER DATED 06/12/2005 IN EP 158 2004 IN OS.139/2001 of MUNSIFF COURT,MUVATTUPUZHA .................... REVN. PETITIONER: ------------------ GEORGE, AGED 58, S/O. VARKEY, KIZHAKKE ARANJANIYIL HOUSE, MUTHOLAPURAM KARA, ELENJI VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: ------------- 1. PEELI, S/O. KUNJOOTTY, KIZHAKKE THONDAYIL HOUSE, MUTHOLAPURAM KARA, ELENJI VILLAGE, MUVATTUPUZHA TALUK. 2. APPACHAN, S/O. KUNJOOTTY, KIZHAKKE THONDIYIL HOUSE, MUTHOLAPURAM KARA, ELENJI VILLAGE, MUVATTUPUZHA TALUK. 3. KUTTAYI, S/O. PAPPACHAN, KIZHAKKE THONDAYIL HOUSE, MUTHOLAPURAM KARA, ELENJI VILLAGE, MUVATTUPUZHA TALUK. 4. KUNJOOTTY, S/O. PATHROSE, KIZHAKKE THONDAYIL HOUSE, MUTHOLAPURAM KARA, ELENJI VILLAGE, MUVATTUPUZHA TALUK. 5. KRISHNANKUTTY, RESIDING AT KIZHAKKE THONDAYIL HOUSE, MUTHOLAPURAM KARA, ELENJI VILLAGE. 6. POULOSE, S/O. CHACKO, CHENNEMKULAM HOUSE, MUTHOLAPURAM KARA, ELENJI VILLAGE. BY ADV. SRI.ASOK M.CHERIAN FOR R1,6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. 3544/2005 IN C.R.P.1236/2005 DISMISSED Sd/- M. SASIDHARAN NAMBIAR, JUDGE 9TH JUNE, 2008. //True Copy// P.A. To Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. No. 1236 of 2005 ------------------------------------------ Dated this the 9th day of June, 2008 O R D E R Petitioner is the plaintiff and respondebts the defendants in O.S. 139 of 2001. Suit was for injunction. Suit was settled and a compromise petition was passed. Ext.A1, compromise petition, shows that as per terms of the compromise plaintiff has to provide a way having a width of 8 feet to the defendants and at the time of construction of the road, including the portion where a Thondu lies, at the expense of the defendants a compound wall separating the road from the plaint schedule property is to be constructed. Accepting Ext.A1 compromise petition, Ext.A2 decree, under which Ext.A1 forms part of the decree was passed. Contending that plaintiff did not comply with the compromise decree, respondents filed EP 158 of 2004. Though petitioner appeared before the Executing Court he did not file any written objection or cross-examined the 5th decree holder and 5th petitioner in the execution petition, who was examined as PW1. Executing Court, therafter, passed an order on 6.12.2005 CRP1236/05 2 appointing an Advocate Commissioner, under whose superviison construction of the way having a width of 8 feet as provided in the compromise decree was directed to be carried out. Respondents were directed to pay Rs.1,000/- to the commissioner as batta. It was provided that they are entitled to realize the cost from the petitioner. The order is challenged in this revision petition filed under Section 151 of Code of Civil Procedure. 2. Learned counsel appearing for petitioner and respondents were heard. Ext.A2 decree only provides that respondents are entitled to use 8 feet width of way inclusive of the Thondu portion, through the plaint schedule property and they are entitled to construct a road through that way. It also provide that at the time of construction of the road, they have to construct a wall separating that road portion from the remaining property of the petitioner. Though the Executing Court under order dated 6.12.2005 appointed the commissioner to supervise the construction of the way, there was no direction to construct a compound wall separating the way from the remaining portion of the decree schedule property as provided under the decree. Therefore, to that extent the order passed by the Executing Court warrants interference. Similarly, when the wall is to be CRP1236/05 3 constructed at the expense of the respondents and they did not mention anything about it in the execution petition, Executing Court was not justified in directing petitioner to pay the cost in the execution petition to the respondents. 3. Revision is allowed in part, the order passed by the Executing Court is modified as follows:- The Advocate Commissioner is appointed at the expense of the petitioners in the execution petition to supervise the construction of the way having a width of 8 feet as provided under the compromise decree and also the construction of the compound wall separating the way from the remaining portion of the decree schedule property at the expense of the petitioners in the execution petition. Respondent in the execution petition (plaintiff) is not liable for the cost in the execution petition. M. SASIDHARAN NAMBIAR, JUDGE Okb/- CRP1236/05 4 ORDER IN I.A. 3544/2005 IN C.R.P.1236/2005 DISMISSED Sd/- M. SASIDHARAN NAMBIAR, JUDGE 9TH JUNE, 2008. //True Copy// P.A. To Judge