IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 16243 of 2009(O) -------------------------- AGAINST THE ORDER IN EP 17/2006 IN OS.199/1998 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER: --------------- BABU, S/O. DAMODARAN, PLANKALA VEEDU, CHERUMANGATTU MURI, PUITHOOR VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.B.MOHANLAL RESPONDENTS: --------------- 1. VASANTHA, D/O. MEENAKSHY, PLANKALA VEEDU, CHERUMANGATTU MURI, PUTHOOR VILLAGE, KOTTARAKKARA P O, TALUK KOLLAM DIST. 2. STATE OF KERALA, REP. BY DISTRICT COLLECTOR, COLLECTORATE, KOLLAM. 3. THE TAHASILDAR, TALUK OFFICE, KOTTARAKKARA KOLLAM DIST. 4. CHELLAPPAN, S/O.RAMAN, PLAVILA PUTHEN VEEDU,KARIKKAL MURI, PUTHOOR VILLAGE, KOTTARKKARA P. O, KOLLAM DIST. 5. SAHADEVAN, PUTHUPPALLY VEEDU, KARIKKAL MURI, PUTHOOR VILLAGE, KOTTARAKKARA P .O, KOLLAM DIST. ADV. SRI.S.SANTHOSH KUMAR FOR R4,R5 GOVERNMENT PLEADER : ADV SRI P R JAYAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16243 of 2009 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : JUDGMENT IN O.S.No.199 OF 1998 DTD. 29.11.2003 OF THE MUNSIFF COURT, KOTTARAKKARA EXHIBIT P2 : ORDER IN C.R.P.No.716 OF 2006 DTD. 25.10.2006 OF THIS HON'BLE COURT EXHIBIT P3 : JUDGMENT IN O.S.No.514 OF 2004 DTD. 30.07.2007 OF the MUNSIFF COURT, KOTTARAKKARA EXHIBIT P4 : JUDGMENT IN O.S.No.199 OF 1998 IN E.P.No.17 OF 2006 DTD. 12.09.2007 EXHIBIT P5 : JUDGMENT DTD. 15.01.2008 IN W.P.C.No.1804 OF 2008 OF THIS HON'BLE COURT EXHIBIT P6 : ORDER IN E.A.NO.120 OF 2007 IN E.P.No.17 OF 2006 IN O.S.No.199 OF 1998 DTD. 04.03.2009 EXHIBIT P7 : ORDER DTD. 11.03.2009 IN EXECUTION PETITION IN E.P.No.17 OF 2006 IN O.S.No.199 OF 1998 FILED BY THE PETITIONER. RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 16243 of 2009 --------------------------------------- Dated this 21st day of July, 2010 JUDGMENT This writ petition is in challenge of Exts.P6 and P7, orders at the instance of decree holder in E.P.No.17 of 2006 in O.SNo.199 of 1998 of the court of learned Munsiff, Kottarakkara. Petitioner/decree holder obtained, as against respondent Nos.1 to 3 Ext.P1, judgment and decree for fixation of boundary. That decree was put into execution. Petitioner filed E.P.No.53 of 2004 which the executing court dismissed on 24-11-2005 holding that the prayer in the execution petition goes beyond the decree. Later, petitioner filed E.P.No.17 of 2006 to execute the decree. While so, respondent Nos.4 and 5 got themselves impleaded in the execution petition claiming that they are beneficiaries of an earlier decree in O.S.No.635 of 1997 filed by the petitioner. The order impleading respondent Nos.4 and 5 was challenged by petitioner in this court in W.P.C.No.1804 of 2008. That writ petition was allowed since the order of impleadment was not a speaking order. Executing court was directed to reconsider the matter and pass appropriate orders. Then came Ext.P6, order allowing impleadment of respondent Nos.4 and 5 as additional W.P.C.No.16243 of 2009 : 2 : respondents in the execution petition. So far as E.P.No.17 of 2006 is concerned, executing court has observed that E.P.No.53 of 2004 was dismissed on 24-11-2005 and that operated as res judicata in petitioner seeking execution of the decree with the same reliefs in E.P.No.17 of 2006. Holding so, E.P.No.17 of 2006 was dismissed as per Ext.P7, order. Learned counsel for petitioner/decree holder contends that respondent Nos.4 and 5 are not necessary parties to E.P.No.17 of 2006 and that no relief is sought against them. In the circumstances, executing court was not justified in impleading respondent Nos.4 and 5 as additional respondents in the execution petition. So far as Ext.P7, order dismissing E.P.No.17 of 2006 is concerned, learned counsel contends that petitioner requested execution only in terms of the decree granted in his favour. Learned counsel for respondent Nos.4 and 5 contend that they are necessary parties in the execution petition since in the previous litigation they were also parties and they are benefited by the decisions in those cases which according to learned counsel would operate as res judicata in the present litigation. It is also the contention of learned counsel that under guise of execution of the decree petitioner is attempting to fix the western boundary of property so as to W.P.C.No.16243 of 2009 : 3 : reduce width of the pathway. Learned counsel contends that since E.P.No.53 of 2004 has been dismissed, present execution petition is not maintainable as held by the executing court. 2. I shall deal with the question whether impleadment of respondent Nos. 4 and 5 as per Ext.P6, order is proper. Admittedly, respondent Nos.4 and 5 are not parties to the suit and there is no decree against them. Nor can the decree be executed against them. It is a different matter whether in the previous litigations respondent Nos.4 and 5 were parties and the decision went in their favour. If in the decree sought to be executed they are not parties, they could very well contend that the decree does not bind them and cannot be executed against them. For that, their presence in the E.P is not required. It is idle for respondent Nos.4 and 5 to contend that they are necessary parties in E.P.No.17 of 2006. It is also idle to contend that decision in the earlier litigations would operate as res judicata in the present litigation. Plea of res judicata between the same parties or persons claiming under them, if not raised in O.S.No.199 of 1998 that plea cannot be raised on the principle of constructive res judicata. Hence between the same parties or persons claiming under them, the last decision should prevail. W.P.C.No.16243 of 2009 : 4 : Respondent Nos.4 and 5 are not necessary parties to E.P.No.17 of 2006. As such, executing court was not correct in allowing impleadment of respondent Nos. 4 and 5 in E.P.No.17 of 2006. Ext.P6, order therefore is liable to be set aside. But I make it clear that if any right of respondent Nos.4 and 5 is infringed or, attempted to be infringed in execution of the decree in O.S.No.199 of 1998 it is open to them to work out their remedy in other manner provided under the Code if they are otherwise entitled to that course. 3. So far as dismissal of E.P.No.17 of 2006 is concerned, no doubt an earlier petition (E.P.No.53 of 2004) was dismissed on 24-11-2005. But, as the learned counsel for respondent Nos.4 and 5 would tell me in fairness that dismissal was because prayer in that E.P exceeded the relief granted in the decree. Hence that dismissal would not affect maintainability of E.P.No.17 of 2006. But the relief prayed for in E.P.No.17 of 2006 can only as provided in the decree. Executing court cannot go beyond the decree granted in favour of petitioner. Hence execution must be confined strictly within the four corners of the decree granted in favour of petitioner. Question whether relief prayed for in E.P.No.17 of 2006 exceeded the relief granted by the decree and W.P.C.No.16243 of 2009 : 5 : assuming so, petitioner should be given an opportunity to amend the execution petition and make it in conformity with the decree in his favour is a matter which the executing court has to decide after hearing counsel for petitioner and respondent Nos.1 to 3/judgment debtors in O.S.No.199 of 1998. Resultantly this writ petition is allowed in the following lines: (i) Ext.P6, order is set aside and E.A.No.120 of 2007 (in E.P.No.17 of 2006 in O.S.No.199 of 1998) of the court of learned Munsiff, Kottarakkara would stand dismissed without prejudice to other rights, if any, of respondent Nos.4 and 5 to protect their right or prevent infringement of their right in execution of the decree in O.S.No.199 of 1998 as provided under the Code if they are otherwise entitled to that course. (ii) Ext.P7, order is set aside and E.P.No.17 of 2006 is remitted to the executing court for fresh decision on the questions whether relief sought for in that execution petition transgressed the relief granted by the W.P.C.No.16243 of 2009 : 6 : decree and if so, petitioner should be given an opportunity to correct the execution petition to make it in tune with the relief granted by the decree. (iii) I make it clear that executing court shall ensure that execution if permitted is strictly in accordance with the relief granted in the decree. (THOMAS P JOSEPH, JUDGE) Sbna/-