IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 CRP.No. 426 of 2007(B) ---------------------- OS.21/1976 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONERS/DECREE HOLDERS 2,3,5-8 & 10/PLAINTIFFS: ----------------------------------------------------------------------- 1. VARGHESE, S/O. ULAHANNAN, NELLIKKUNNEL (H), KALIYAR, KODIKKULAM VILLAGE, THODUPUZHA. 2. LUKA, S/O. ULAHANNAN, NELLIKKUNNEL HOUSE, KALIYAR KARA, KODIKKULAM, THODUPUZHA. 3. AMMINI, W/O. JOSEPH, NELLIKKUNNEL HOUSE, KALIYAR KARA, KODIKKULAM VILLAGE, THODUPUZHA TALUK. 4. MANJU JOSEPH, D/O. JOSEPH, NELLIKKUNNEL HOUSE, KALIYAR, KODIKKULAM, THODUPUZHA. 5. DARVIN JOSEPH, S/O. JOSEPH, NELLIKKUNNEL HOUSE, KALIYAR, KODIKKULAM, THODUPUZHA. 6. MOTTI, S/O. JOSEPH, NELLIKKUNNEL HOUSE, KALIYAR, KODIKKULAM VILLAGE, THODUPUZHA. 7. ANNAKUTTY, W/O. CHAKKAPPAN, POTTAKARIVALANCHIRA HOUSE, POOCHAKKAL KARA, CHERTHALA. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S)/JUDGMENT DEBTORS/DEFENDANTS: ------------------------------------------- 1. CHIEF SECRETARY, STATE OF KERALA, THIRUVANANTHAPURAM. CRP.426/07 2. DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, KOTHAMANGALAM. 3. RANGE OFFICER, KALIYAR FOREST RANGE OFFICE. GOVT.PLEADER SRI.K.SANIL KUMAR (FOREST) SRI.SHYSON P. MANGUZHA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.426 OF 2007 () ----------------------------------- Dated this the 2nd day of March, 2010 O R D E R Revision is directed against the dismissal of an application filed under Order XXI Rule 32 of the Code of Civil Procedure by the petitioners, who are the legal heirs of the plaintiff/decree holder in O.S. 21 of 1976 on the file of the Munsiff Court, Thodupuzha. In the above suit, a decree declaring the possession of the predecessor of the plaintiff over the suit property having an extent of three acres comprised in Vannapuram village, formerly known as Kodikkulam village, and also an injunction prohibiting the defendants/respondents, State and forest officials from trespassing upon that property was granted. In the appeal preferred by the defendants, the decree granted was confirmed. Pursuant to the decree, previously the decree holder and later his successors, the present petitioners, have filed petitions under Order XXI Rule 32 of the Code of Civil Procedure contending that the respondents, forest officials, CRP.426/07 2 violated the decree by trespassing upon the property. Execution petitions so moved had been dismissed, the first one for default, and the latter one for not identifying the decree schedule property alleging a subsequent trespass over the property the present petitioners moved the third petition E.P.No.94 of 1989. That petition, after taking evidence, was allowed. Against which, the respondents preferred a revision before this Court as C.RP.No.353 of 2000. This Court setting aside the order of dismissal remitted the case directing the execution court to provide an opportunity to the petitioners to identify the decree schedule property. After such remission, the execution court after appreciating the materials dismissed the execution petition holding that the identity of the decree schedule property has not been established. Correctness of that order is impeached in the revision. 2. I heard the counsel on both sides. At the time of hearing, after having a comparison of the property identified by the Commissioner in the execution proceedings and also by the Advocate Commissioner deputed on the trial side with CRP.426/07 3 reference to the decree schedule property, it is fairly conceded by the learned counsel for the revision petitioner that the property identified is not in consonance with the description of the decree schedule property, and so much so, a correction of the decree schedule is necessary. The property identified by the Advocate Commissioner at various stages, on the trial side and also on the execution side, I find is conflicting with the description of property in decree schedule. Counsel is perfectly correct in submitting that without rectifying the decree schedule no execution on the basis of the property identified is possible. In view of the mistake which is stated to have occurred in the description of decree schedule, the learned counsel sought permission to withdraw the revision without prejudice to his right to move for correcting the decree schedule and then to take appropriate steps for violation of the decree granted by the court. It is open to the petitioner to move for correcting the decree schedule description presenting application as provided by law. In case any such application is filed, it has to be disposed of in accordance with law. So far as the merit of CRP.426/07 4 that application or enquiry to be conducted therein, no observation from this Court is called for, and I refrain from doing so. The revision is closed subject to the above observations. S.S.SATHEESACHANDRAN JUDGE prp