IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 WP(C).No. 19894 of 2007(R) -------------------------------------- OS.671/1993 of PRINCIPAL SUB COURT, PALAKKAD .............................................. PETITIONER: ------------------ SHAILAJA, W/O. SUKUMARAN, RESIDING AT PUZHAKKAL, KANNADI AMSOM AND DESOM, PALAKKAD TALUK. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA RESPONDENTS: --------------------- RAMASWAMI, S/O. APPUCHAMI, KADUMTHURUTHI, KINASSERY, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No. 19894/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE DECREE IN O.S. NO. 671/1993 DT. 5/08/00 ON THE FILE OF THE SUB COURT, PALAKKAD. EXT.P2. COPY OF THE REPORT DT. 1/12/2004 IN IA NO. 1552/200A IN OS NO. 671/93 BY ADVOCATE ASAD N.N. EXT.P3. COPY OF THE SKETCH SUBMITTED BY ADVOCATE COMMISSIONER ALONG WITH EXT.P2. EXT.P4. COPY OF THE IA NO. 2084/2005 DT. 10/08/2005 FILED BY THE PETITIONER IN OS NO. 671/93 ON THE FILE OF THE SUB COURT, PALAKKAD. EXT.P4A. COPY OF THE AFFIDAVIT DT. 10/08/2005 FILED BY THE PETITIONER IN SUPPORT OF EXT.P4. EXT.P5. COPY OF THE IA NO. 2085/2005 DT. 10/08/2005 FILED BY THE PETITIONER IN OS NO. 671/93 ON THE FILE OF SUB COURT PALAKKAD. EXT.P5A. COPY OF THE AFFIDAVIT DT. 10/08/2005 FILED BY THE PETITIONER IN SUPPORT OF EXT.P5. EXT.P6. COPY OF THE OBJECTIONS DT. 10/8/2005 FILED BY THE PETITIONER IN EXT.P2. EXT.P7. COPY OF THE COMMON ORDER IN IA NO. 2084/2005 AND 2085/2005 IN IA NO. 3402/2000 IN OS NO. 671/93 DT. 20/3/07 ON THE FILE OF SUB COURT, PALAKKAD. RESPONDENT'S EXHIBITS : NIL. / TRUE COPY / tga M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 19894 OF 2007 =========================== Dated this the 11th day of July 2008 JUDGMENT Petitioner is the judgment debtor and respondent the decree holder in O.S.671/1993 on the file of Sub Court, Palakkad. Suit was filed for specific performance of an agreement for sale dated 5.12.1992 executed by the petitioner in favour of the respondent. The decree directs the petitioner to execute a sale deed within a period of 45 days conveying his title to plaint schedule property excluding 3 cents of property in R.S.No.145/7 wherein the concrete house is situated to the respondent on payment of the balance sale consideration. On the failure of petitioner to execute the sale deed, respondent filed I.A.3402/2000 to get the sale deed executed and also for delivery of the property. The trial court appointed a Commission to identify the property so as to show the description of the property in the W.P.(C)19894/07 2 sale deed to be executed. Commissioner submitted a report and plan. I.A.2084/2005 and 2085/2005 were filed by petitioner to set aside or remit the report and the other to receive the objection to the Commissioner's report. Under Ext.P7 order learned Sub Judge dismissed both the petitions. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. Learned counsel appearing for petitioner and learned senior counsel appearing for respondent were heard. 3. Learned counsel appearing for petitioner argued that Commissioner has not identified the property as shown in the agreement and the agreement does not provide for any way and therefore Commissioner is not authorised to provide a way and learned Sub Judge was not justified in accepting that report and therefore the report and plan are to be set aside. Learned senior counsel argued that the order passed by the learned Sub Judge dismissing the applications to W.P.(C)19894/07 3 set aside the report and plan submitted by the Commissioner cannot be challenged by filing a petition under Article 227 and for that sole reason the petition is to be dismissed. It was also argued that when petitioner executed an agreement for sale excluding three cents of the property wherein the residential house is situated, as demarcated by the Commissioner the property agreed to be sold is that property and respondent is entitled to get a sale deed in respect of the said property. 4. On hearing the learned counsel and on going through Ext.P7 order as well as the judgment in the suit, it is clear that learned Sub Judge did not consider the question whether a Commission is to be appointed in the light of the nature of the suit and the decree passed. The decree being one for specific performance of an agreement for sale, there is no question of identifying the property covered under the document, after the date of the decree, for deciding the description of the W.P.(C)19894/07 4 property which was agreed to be sold. In fact, issue No.2 in the suit was what is the correct identity of the property agreed to be sold. A Commissioner was appointed at the trial stage and the Commissioner submitted Ext.C1 report and C1(a) plan which were accepted by the learned Sub Judge while passing the decree. Therefore what is the property agreed to be sold is already decided by the trial court. The decree is to execute a sale deed as agreed in the agreement. Therefore learned Sub Judge is only to direct the respondent decree holder to furnish a draft sale deed in accordance with the agreement upheld by the trial court and covered by the decree. Once that draft sale deed is produced, learned Sub Judge is to execute and register the same. After registration respondent decree holder is entitled to take delivery of the property covered by the sale deed. As the appointment of the Commission itself was without jurisdiction and unnecessary, petition to set aside the report and plan is unnecessary. W.P.(C)19894/07 5 Learned Sub Judge is to eshew the report and plan submitted and need only rely on the report and plan marked in the suit. It is made clear that Ext.P7 order is also to be eshewed. Learned Sub Judge is directed to proceed with the petition ignoring the report and plan obtained subsequent to the decree and to proceed based on Ext.C1 and C1(a) report and plan marked in the judgment as directed earlier. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006