IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 OP(C).No. 1089 of 2011(O) ------------------------------------- AS.156/2007 of SUB COURT, PERUMBAVOOR E.P.11/2010 IN OS.17/2002 of MUNSIFF COURT, KOLENCHERRRY .................... PETITIONER ------------------ BENNY T.MATHAI, S/O. LATE MATHAI, AGED 48, THOLAMKULANGARA HOUSE, PANCODE P.O., AIKKARANADU NORTH VILLAGE, VADAVUCODE, KUNNATHUNADU TALUK, NOW RESIDING AT VILLA-2, IMPERIAL GARDEN, SOUTH EROOR, THRIPPUNITHURA. BY ADV. SRI.MATHEWS K.PHILIP SMT.T.MANASY RESPONDENT(S): -------------------------- 1. THOMAS, S/O. CHACKO, THOLAMKULANGARA HOUSE, KOLENCHERY, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-682 311. 2. MARY, W/O. THOMAS, THOLAMKULANGARA HOUSE, KOLENCHERY, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-682 311. 3. PATHROSE, S/O. CHACKO, THOLAMKULANGARA HOUSE, KOLENCHERY, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-682 311. 4. CHACKO, S/O. CHACKO, THOLAMKULANGARA HOUSE, KOLENCHERY, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-682 311. tss OP(C) NO.1089/2011 5. ALEYAMMA, W/O. LATE MATHAI, THOLAMKULANGARA HOUSE, KOLENCHERY, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-682 311. 6. THANKAMMA, D/O. LATE MATHAI, THOLAMKULANGARA HOUSE, KOLENCHERY, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-682 311. 7. MEENA, D/O. LATE MATHAI, THOLAMKULANGARA HOUSE, KOLENCHERY, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-682 311. 8. REGI, D/O. LATE MATHAI, THOLAMKULANGARA HOUSE, KOLENCHERY, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM-682 311. R1 & R2 BY ADVS. SRI.JOBY JACOB PULICKEKUDY, SRI.ANIL GEORGE, SRI.K.S.SUMEESH. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.1089/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EP.11/2010 IN OS.17/2002 ON THE FILE OF MUNSIFF COURT, KOLENCHERY. P2:- COPY OF THE OBJECTION FILED BY THE PETITIONER IN EP.11/2010 IN OS.17/2002 ON THE FILE OF MUNSIFF COURT, KOLENCHERY. P3:- COPY OF THE IA. 749/10 IN AS. 156/07 ON THE FILE OF SUB COURT PERUMBAVOOR P4:- COPY OF THE IA. 750/10 ION AS. 156/07 ON THE FILE OF SUB COURT PERUMBAVOOR. P5:- COPY OF THE IA. 746/10 ON THE FILE OF SUB COURT PERUMBAVOOR. P6:- COPY OF THE IA. 747/10 ON THE FILE OF SUB COURT, PERUMBAVOOR. P7:- COPY OF THE ORDER DTD. 25.2.2011 IN EP. 11/10 IN OS. 17/02 ON THE FILE OF MUNSIFF COURT, KOLENCHERY. P8:- COPY OF THE COMPROMISE DECREE IN AS. 156/07 ON THE FILE OF SUB COURT PERUMBAVOOR. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1089 of 2011 --------------------------------------- Dated this 19th day of September, 2011 JUDGMENT Petitioner is the 7th additional defendant in O.S.No.17 of 2002 of the Court of learned Munsiff, Kolencherry. That is a suit for declaration of title and fixation of boundary filed by respondents 1 and 2/plaintiffs against defendants 1 to 3, originally. First defendant (predecessor-in-interest of additional defendants 4 to 7) filed written statement and he was examined. At that stage, first defendant expired. Defendants 4 to 6 and petitioner were impleaded as legal heirs of the deceased first defendant. They appeared and contested the suit. Trial court passed a decree in favour of first defendant on 22.08.2006. That was followed by defendants 2 and 3 filing A.S.No.156 of 2007 impleading additional defendants 4 to 6 and petitioner. However they remained absent in the appeal. It appears that respondents 1 and 2/plaintiffs had preferred an appeal against all the defendants. While so, there was a compromise between respondents 1 and 2 and defendants 2 and 3 as per which a compromise decree was passed regarding fixation of boundary to the extent it concerned respondents 1 and 2 and defendants 2 O.P(C).No.1089 of 2011 -: 2 :- and 3 and concerning their properties. Based on the compromise, respondents 1 and 2 withdraw their appeal. Thereafter, respondents 1 and 2 filed Ext.P1, execution petition in the year, 2010. The prayer in that execution petition was to execute the compromise decree in appeal against defendants 2 and 3 and the decree of the trial court against petitioner and additional defendant No.6. It is submitted that the Advocate Commissioner was appointed to inspect the properties. Petitioner preferred Ext.P2, objection to the execution petition claiming that no notice under Rule 22 of Order XXI of the Code of Civil Procedure (for short, "the Code”) was issued to the petitioner and additional defendant No.7. Executing court passed Ext.P7, order appointing Advocate Commissioner to measure the properties with the help of a Surveyor. 2. Grievance of petitioner is that Ext.P7, order does not mention even about Ext.P2, objection preferred by petitioner and much less, his claim that the decree could not have been executed against him without notice under Rule 22 of Order XXI of the Code. Learned counsel submitted that what is sought to be executed against petitioner and defendant No.6 is the decree of trial court dated 22.08.2006 and since Ext.P1, execution petition is filed in the year 2010, the executing court was to issue notice O.P(C).No.1089 of 2011 -: 3 :- under Rule 22 of Order XXI of the Code to the petitioner. 3. Learned counsel for respondents 1 and 2 contended that in A.S.No.156 of 2007 (where a compromise decree was passed between respondents 1 and 2 and defendants 2 and 3), petitioner has filed an application to set aside the ex parte order with an application for review and in the circumstance the contention that under Rule 22 of Order XXI of the Code, notice was required to be sent to the petitioner, cannot be accepted. 4. I am afraid I cannot accept the argument of learned counsel for respondents 1 and 2. It is seen from Ext.P1, execution petition that what is sought to be executed against petitioner and defendants No.6 is the decree of the trial court dated 22.08.2006 and admittedly, petitioner and defendants 4 to 7 were not parties in the compromise decree dated 17.06.2009 in A.S.No.156 of 2007. Hence the trial court decree to the extent it concerned petitioner and defendants 4 to 6 will not merge in the appellate court decree in A.S.No.156 of 2007. Therefore since Ext.P1, execution petition is filed in the year 2010 ie., more than two years after the date of the trial court decree, executing court was bound to issue notice under Rule 22 of Order XXI of the Code to the petitioner (whose case alone is considered here as the challenge is only by the petitioner). The executing court was not O.P(C).No.1089 of 2011 -: 4 :- correct in appointing the Advocate Commissioner and Taluk Surveyor to fix the boundary of property of petitioner and respondents 1 and 2 without complying with Rule 22 of Order XXI of the Code and hearing the objection of petitioner as to the executability of the trial court decree against petitioner. Resultantly this original petition is allowed as follows: (i) Ext.P7, order dated 25.02.2011 in E.P.No.11 of 2010 in O.S.No.17 of 2002 of the court of learned Munsiff, Kolencherry to the extent it concerned petitioner and the property over which he is claiming right is set aside. (ii) Executing Court is directed to issue notice under Rule 22 of Order XXI of the Code to the petitioner (and if respondents 1 and 2 are desirous of executing the trial court decree against defendants 4 to 6, against them also) as to the executability of the decree of the trial court dated 22.08.2006 as against him/them and after hearing him/them on the executability, shall pass appropriate order in the matter. (iii) It is made clear that this order will not stand in the way of the executing court proceeding against defendants 2 and 3 in respect of whom, respondents 1 and 2 wants to execute the compromise decree in A.S.No.156 of 2007. (THOMAS P JOSEPH, JUDGE) Sbna/-