IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 CRP.No. 569 of 2006() ------------------------------ EA. NO.355/2005 & EA. 356/2005 IN EP. 406/04 IN OS.168/1981 of PRL.SUB COURT,TRIVANDRUM. .................... REVN. PETITIONER: PETITIONER: ----------------------------- ROBIN PETER, `ROY BHAVAN', PAPPANAMCODE, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.M.R.SARIN SRI.HARISH GOPINATH SRI.V.VINAY MENON RESPONDENTS: 1ST PLAINTIFF: ------------------------ SANTHAKUMARI, SREE BHAVAN MANUKULADICHAMANGALAM DESOM, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ===================== C.R.P. No.569 OF 2006 ===================== Dated this the 9th day of January 2008 O R D E R This revision petition is preferred against the order of the Prl.Sub Court, Thiruvananthapuram in E.A.Nos.355 & 356/2005 in E.P.No.406/2004 in O.S.No.168/1981. The brief facts necessary for the disposal of the revision petition are stated as follows: A perusal of the decree would reveal that plaintiffs in the suit are entitled to 4/8 shares. I am only referring to the disputed proposition here. As per the decree, plaintiffs are alloted 28 cents in the plaint schedule item No.1 marked as Plot No.III in Ext.C2 plan. A perusal of the plan would show that there is Plot No.II as well as Plot No.III. The sketch would further reveal that though the property is shown as having an extent of 51 ½ cents, by measurement it is 56 cents and therefore one half will be 28 cents. 2. Now the grievance of the petitioner is that when the Amin went to effect delivery of the property instead of delivering 28 cents of property covered by the decree, 31 ½ cents had been delivered and therefore there is excess delivery. Learned counsel for the revision petitioner rights contends CRP 569/2006 -:2:- the question of correctness of the delivery or excess delivery is a matter that can be adjudicated under Section 47 of the Code of Civil Procedure. He had relied upon two decisions:(1) AIR 1993 Gauhati 56(Babul Ali v. khirada Dutta) and (2) AIR 1990 Punjab and Haryana 92(Darshan Lal v. Comrade Daya Singh). So far as the Gauhati decision is concerned, there cannot be any dispute with respect to the maintainability of the petition under Section 47 of the C.P.C. In the Punjab and Haryana decision, the court held that it is obligatory on executing Court to decide objection judicially and not summarily and that if parties wanted to lead evidence, that has to be allowed. 3. Now let me find out whether the approach made by the court below is contrary to the principles laid down. A Commissioner was appointed for effecting a final decree for partition and he with the assistance of the Taluk Surveyor actually measured the property demarcated as 56 cents segments as Plot Nos.II and III and set apart Plot No.III to the plaintiffs. When the decree was put into execution by the plaintiffs, the Amin was accompanied by the Taluk Surveyor and the Taluk Surveyor measured the property in the presence of the parties. Plot No.III was correctly located according to the Amin and was delivered. Learned counsel for the respondent has made available before me the report of the Amin. It is very CRP 569/2006 -:3:- clearly stated that the plaintiffs and defendants were present in the spot and further the property was measured by the Taluk Surveyor, i.e. Plot Nos.III,V,VII and VIII along with Ext.C2 plan and thereafter the property was delivered to the plaintiffs. So, the scope of delivery is to effect delivery of the properties covered by the decree and even at the stage of actual delivery of the property, it has been measured by the Surveyor, who accompanied the Amin with reference to Ext.C2 plan and only on that satisfaction delivery has been effected. Further, the Amin has been examined before the court and the court has referred to the deposition of the Amin regarding the manner in which the delivery was effected. Therefore, what is expected of a court effecting delivery is correctly done by the executing court and the act of delivery committed by the Amin has been evaluated by the court by examination of him and only on satisfaction has recorded the delivery. When a matter which is to be done under the decree has been rightly done by the officer of the court to the satisfaction of the court, a further question of again attempting to measure the property is only improper and especially in a case of this nature, which had already crossed the age of 26 years. Therefore, I do not find any merit in this revision CRP 569/2006 -:4:- petition. Hence it is dismissed. M.N.KRISHNAN, JUDGE Cdp/-