IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 CRP.No. 334 of 2010() --------------------- OS.524/2000 of PRL.M.C.,ERNAKULAM .................... REVN. PETITIONER(S): --------------------- GEETHA,W/O.LATE PREMANANDA PAI, NIKARTHIL HOUSE, PATTUKULANGARA, KUTHIAYATHODU P.O.,CHERTHALA. BY ADV. SRI.S.VINOD BHAT RESPONDENT(S): --------------- 1. SHOBA, W/O. AUGUSTINE, THAMMANANTHPARAMBIL HOUSE, POONITHURA, PONNURUNNI, THAMMANAM P.O., ERNAKULAM DIST. PIN - 682032. 2. SURENDRA SHENOY, THAMMANATHPARAMBIL HOUSE POONITHURA, PONNURUNNI, THAMMANAM P.O., ERNAKULAM DISTRICT PIN - 682032. 3. CHITHRAVATHI, THAMMANANTHUPARAMBIL HOUSE, PONNURUNNI, THAMMANAM P.O., ERNAKULAM DISTRICT - PIN - 682032. 4. MANI, THAMMANATHUPRAMBIL HOUSE, PONNURUNNI, THAMMANAM P.O., ERNAKULAM DISTRICT - 682032 ADV. SRI.N.K.MOHANLAL FOR R1 SRI.M.K.THANKAPPAN FOR R3-4 SRI.ANUP T PAUL FOR R2 SRI.K.M.SANAL FOR R2 SRI.K.R.MOHANAN FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH,J -------------------------------------- C.R.P.NO. 334 OF 2010 ------------------------------------------ Dated this the 17th day of August, 2010. ORDER Petitioner, along with her other sisters (respondents 1,3 and 4) obtained a preliminary decree for partition of the suit property, 8 cents in extent against their sole brother, respondent No.2. As per the exparte preliminary decree dated 23.8.2000 parties are to get 1/5th share each in the suit property. Petitioner, respondents Nos.1,3 and 4 filed I.A.4028 of 2002 for passing final decree. Advocate commissioner inspected the property, according to the petitioner without notice to her and submitted a report and plan. He was assisted by the Village Officer for measurement of the property. As per the report and plan, respondent No.1 was allotted plot No.4 measuring 1.6 cents while plot No.2, the remaining 6.4 cents was kept in common. It is no disputed that final decree has become final. Respondent No.1 filed E.P.No.243 of 2007 praying that the property allotted to her (plot No.4) as per final decree and as shown in the report and plan submitted by the advocate commissioner may be delivered over to her. Petitioner filed E.A.No.343 of 2009 purporting to be under Order 21 Rule 99 of the Code of Civil Procedure (for C.R.P.NO. 334 OF 2010 2 short 'the Code') claiming that if that plot No.4 is allotted to respondent No.1, right of access for respondent Nos.3 and 4 to plot No.2 where they are residing will be lost. That application was dismissed on 14-7-2009 for the reason that in the mean time plot No.4 was delivered over to respondent No.1. In view of the delivery which was reported on 15.7.2009 execution petition was closed. On 23.7.2009 respondent No.1 filed E.A.Nos.379 and 390 of 2009, the former to reopen the E.P. and the latter, to permit construction of compound wall along boundary of plot No.4 delivered over to her. Those applications were dismissed on 24.7.2009 for the reason that the decree stands satisfied (by delivery of plot No.4 to respondent No.1). Respondent No.1 filed E.A.No.408 of 2009 for review of the order dated 24-7-2009 on E.A.No.380 of 2009. That application was allowed vide order dated 3.10.2009 and respondent No.1 was permitted to construct compound wall along boundary of property (plot No.4) allotted and delivered over to her. That order is under challenge in this revision petition. In the meantime, petitioner filed E.A.496 of 2009 under Order 21 Rule 99 of the Code but, after the executing court allowed E.A.408 of 2009 on 3.10.2009. In that application, petitioner against stated that construction of compound C.R.P.NO. 334 OF 2010 3 wall as permitted vide order dated 3.10.2009 (under challenge in this revision) would affect her right of access to plot No.2. It is contended by learned counsel for petitioner that prayer in E.A.No.243 of 2007 was only for delivery of 1/5th share allotted to respondent No.1 and shown in the decree schedule plan (plot No.4) and, that purpose having been accomplished by delivery, executing court became functus officio and thereafter could not entertain E.A.No.380 of 2009. It is further contended that order on E.A.496 of 2009 is under challenge in appeal in the District Court, Ernakulam and hence, only after disposal of the appeal, respondent No.1 may not be permitted to carry on with construction of compound wall. Learned counsel for respondent No.1 placing reliance of the decision in Mathaikunju @ Princess Mathew v Varghese @ Sunny (1995 (1) KLJ 795) contended that even after satisfaction of the decree, execution court does not loose power to pass appropriate orders for the ends of justice. According to the learned counsel, respondent No.1 has no information about the appeal said to be preferred against the order on E.A.No.496 of 2009 . Learned counsel contends, even that appeal cannot be sustained since there was no challenge to the dismissal of E.A.343 of 2009. C.R.P.NO. 334 OF 2010 4 It is not necessary for me go into the question regarding correctness of dismissal of E.A.Nos.343/2009 or, 496/2009. Fact remains that report and plan submitted by the advocate commissioner was accepted in the final decree . Until the final decree and plan appended thereto are varied, modified, annulled or altered as provided under law the same should stand. Therefore, executing court was bound to proceed with the matter based on the final decree and plan appended thereto. I am not impressed by the contention of learned counsel for petitioner that once satisfaction of the decree is recorded and E.P. is closed, executing court becomes functus officio. It is within the power of executing court to pass appropriate orders even after satisfaction of the decree in the ends of justice. That is what the decision in Mathaikunju @ Princess Mathew v Varghese @ Sunny (Supra) also states. Now grievance of petitioner is that if compound wall is constructed along boundary of plot No.4 delivered over to respondent No.1, petitioner's right of access to plot No.2 will be affected. That contention cannot be accepted since plan attached to the final decree shows that there is access from Vyttila - Thammanam road to plot No.4 along its southern side and that access goes further C.R.P.NO. 334 OF 2010 5 towards west along southern side of at least a portion of item No.2. But, I make it clear that if petitioner has challenged lack of right of access in the appeal said to be preferred against the order on E.A.No.496 of 2009, it is open to that court to consider that question, notwithstanding the observation which, I have made above, if petitioner is entitled to raise any such contention in that appeal. The proposed construction is along boundary of plot No.4. That means, it is excluding pathway shown in the plan attached to the decree schedule. If the appeal from the order on E.A.No.496 of 2009 is pending consideration, appellate court is competent to interfere with the final decree or the plan accepted thereby and appellate court makes any alteration in the allotment of the property or its alignment, I make it clear that construction of compound wall will be subject to such decision by the appellate court. Otherwise, there is no reason to interfere with the order under challenge. Resultantly, the revision petition is dismissed but, subject to the following directions: 1. Construction of compound wall shall be strictly along boundary of plot No.4 in the plan attached to the final decree and excluding the C.R.P.NO. 334 OF 2010 6 pathway referred to therein. 2. It is made clear that if the appellate court considering correctness of order on E.A.496 of 2009 makes any change or alteration in the allotment or alignment of property among the parties, construction of the compound wall will be subject to such order. It is made clear that it will be open to respondent No.1 to proceed with construction as permitted by the executing court without waiting for the decision on the appeal from the order on E.A.496 of 2009 but, it will be subject to the direction made above. THOMAS P JOSEPH,JUDGE. pm