IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).NO. 26286 OF 2010(O) -------------------------- {IN EA 52/2010 IN EP 46/07 IN OS.41/1995 OF THE MUNSIFF'S COURT, ,PATHANAMTHITTA} .................... PETITIONER(S): JUDGMENT DEBTOR ---------------------------------------- P.N.RAMACHANDRAN NAIR, AGED 65 YEARS, S/O.LATE NARAYANAN NAIR, PUTHENVEETTIL PARAMBIL HOUSE, LAKOOR, KOTTAYAM MURI, PRAMADOM VILLAGE, PATHANAMTHITTA. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER RESPONDENT(S): DECREE HOLDER --------------------------------------- P.N.SARASWATHY AMMA, W/O.SREEDHARAN NAIR, PANAMGOTTU VEEDU, MANGARAM MURI, KONNI VILLAGE - 689 691. BY ADVS. SRI. K.SHAJ & SRI.SAJJU.S THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26286 OF 2010 :: :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT IN O.S.NO.41/95 ON THE FILESOF THE MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P2: TRUE COPY OF THE PARTITION DEED 1270/79 DATED 17.04.1979. EXT.P3: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER. EXT.P4: TRUE COPY OF THE CERTIFICATE DTD. 04.03.1978 ISSUED FROM THE DEPARTMENT OF MEDICINE, GOVT.MEDICAL COLLEGE, TRIVANDRUM. EXT.P4(A): TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED FROM THE DISTRICT MEDICAL BOARD, PATHANAMTHITTA DTD. 27.08.02. EXT.P4(B): TRUE COPY OF THE IDENTITY CARD FOR PERSONS WITH DISABILITIES DTD. 12.05.2003 ISSUED BY THE DISTRICT SOCIAL WELFARE OFFICER, PATHANAMTHITTA. EXT.P5: TRUE COPY OF THE JUDGMENT DATED 24.07.1999 IN O.S.41/95 ON THE FILES OF MUNSIFF'S COURT, PATHANAMTHITTA. EXT.P6: TRUE COPY OF MEMORANDUM OF APPEAL. EXT.P7: TRUE COPY OF THE PETITION TO CONDONE DELAY. EXT.P8: TRUE COPY OF THE JUDGMENT DATED 27.01.2010 IN A.S.NO.121/2007 ON THE FILES OF ADDITIONAL DISTRICT COURT, PATHANAMTHITTA. EXT.P9: TRUE COPY OF THE APPLICATION DTD. 01.07.2010 FILED UNDER SEC.47 OF CPC AND NUMBERED AS E.A.52/2010 IN E.P.NO.46/2007. EXT.P10: TRUE COPY OF THE ORDER DTD. 02.07.2010 IN E.A.NO.52/2010 IN E.P.NO.46/2007 IN O.S.41/1995 ON THE FILES OF THE MUNSIFF'S COURT, PATHANAMTHITTA. WP(C).No. 26286 OF 2010 :: :: EXT.P11: TRUE COPY OF THE PLAN MARKED AS EXT.C1(B) AND ATTACHED TO THE DECREE IN O.S.41/95. EXT.P12: TRUE COPY OF THE PLAN IN O.S.352/90 ON THE FILES OF THE MUNSIFF'S COURT, PATHANAMTHITTA. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. --------------------------------------- W.P.(C).No.26286 of 2010 --------------------------------------- Dated this the 7th day of October, 2010 JUDGMENT The writ petition is filed by the judgment debtor in O.S.No.41/95 on the file of the Munsiff's Court, Pathanamthitta. The decree passed in the above suit was one for fixation and putting up of boundary on the basis of C1(b) plan prepared by the Advocate Commissioner deputed by the court. P5 is the copy of the judgment rendered by the trial court in the above suit, which discloses that “the respondent/plaintiff was allowed to fix and put up the boundary of plaint item No.2 through the DJ and EH lines shown in C1(b) plan through the court at her own cost”. 2. As against that decree, admittedly, the petitioner/defendant preferred an appeal. That appeal was dismissed as not pressed as seen from P8 judgment rendered by the lower appellate court. Pursuant to dismissal of that appeal, the respondent executed the decree through court. In execution of the decree fixation of the boundary was carried out in excess of what is provided under the decree is the case of the petitioner/judgment W.P.(C).No.26286 of 2010 :: 2 :: debtor, who filed an application under Section 47 of the Code before the execution court for modification and variation in the boundary already put up. P9 is the copy of the application moved as above under Section 47 of the Code of Civil Procedure. The definite case canvassed by the petitioner/judgment debtor was that fixation of the boundary in execution was made not in tune with C1(b) plan and so much so, the boundary fixed through the Amin and Surveyor deputed by the court had to be refixed in terms of the decree. When that application came up for consideration, the execution court dismissed it by P10 order holding that the execution proceedings as not pending. Propriety, legality and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Notice given the respondent/decree holder has entered appearance. I heard the counsel. 4. The dismissal of P9 petition under P10 order for the reason that the execution proceedings was not pending cannot be W.P.(C).No.26286 of 2010 :: 3 :: sustained under law. When there is excess execution, the remedy available to the judgment debtor is to approach the execution court and he has no right to agitate the grievance thereof by way of a separate suit. Any question relating to the execution, discharge and satisfaction of the decree as between the parties or their representatives has to be gone into by the execution court and so much so, when the petitioner/judgment debtor has approached the execution court with a grievance, as indicated above, stating that there was excess execution of the decree and it was not properly executed, the execution court was bound to have an enquiry in the matter. True, if the petition is found to be frivolous, it can be rejected at the threshold. But the reasons stated in P10 that it cannot be considered since is no execution proceedings are pending cannot at all be sustained. P10 order is set aside. There will be a direction to the execution court to consider P9 in accordance with law and dispose it of with notice to the decree holder. W.P.(C).No.26286 of 2010 :: 4 :: The writ petition is disposed of directing both parties to maintain status quo over the disputed property for a period of one month. It is open to the petitioner to seek extension interim order, if so advised, from the execution court. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//