IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRP.No. 324 of 2009 ---------------------------- AGAINST THE ORDER DATED 23/05/2009 IN EP 206/1996 IN OS.1358/1984 of PRL. MUNSIFF COURT, ERNAKULAM .................... REVN. PETITIONER(S): ADDL.JUDGEMENT DEBTORS 13TO16/LRS OF DEFENDANT 1 --------------------------------------------------------------------------------------------------------------------- 1. AMMINI,AGED 72,W/O.LATE KITTU, RESIDING AT THEJUS,THIRUVAMKULAM DESOM, P.O.THIRUVAMKULAM,KANAYANNOOR TALUK. 2. DR.ASHA,AGED 43,D/O.LATE KITTU, RESIDING AT THEJUS,THIRUVAMKULAM DESOM, P.O.THIRUVAMKULAM,KANAYANNOOR TALUK. 3. RAJESH,AGED 41,S/O.LATE KITTU, RESIDING AT THEJUS,THIRUVAMKULAM DESOM, P.O.THIRUVAMKULAM,KANAYANNOOR TALUK. 4. SETHULAKSHMI,AGED 39,D/O.LATE KITTU, RESIDING AT THEJUS,THIRUVAMKULAM DESOM, P.O.THIRUVAMKULAM,KANAYANNOOR TALUK. BY ADV. SRI.K.K.APPU SRI.JOSEPH SHYLAN.T.M. RESPONDENT(S): DECREE HOLDERS/JDS 3 TO 7 & ADDL.JDS 9 TO 12 ----------------------------------------------------------- 1. THANKAMANI,AGED 57,WIFE OF KUMARAN, HOUSE NO.111/393,MANNARIPARAMBIL, P.O.IRUMPANAM,KANAYANNOOR TALUK. 2. BIJU,AGED 34,S/O.LATE KUMARAN, HOUSE NO.111/393,MANNARIPARAMBIL, P.O.IRUMPANAM,KANAYANNOOR TALUK. 3. BINDU,AGED 32,D/O.LATE KUMARAN, HOUSE NO.111/393,MANNARIPARAMBIL, P.O.IRUMPANAM,KANAYANNOOR TALUK. 4. DASAN @ BHASKARAN,AGED 49, S/O.LATE AYYAPPAN VAIDYAR,KOTHARIPARAMBIL, THIRUVAMKULAM VILLAGE,KANAYANNOOR TALUK. C.R.P 324/2009 5. DIVAKARAN,AGED 45, S/O.LATE AYYAPPAN VAIDYAR, -DO- -DO- 6. DAVAKI,AGED 55, D/O.LATE AYYAPPAN VAIDYAR, -DO- -DO- 7. MADHAVI,AGED 48, D/O.LATE AYYAPPAN VAIDYAR, -DO- -DO- 8. ARAVINDHAKSHAN,AGED 43, S/O.LATE AYYAPPAN VAIDYAR, -DO- -DO- 9. K.G.BHARATHI,AGED 50, W/O.LATE SREEDHARAN, -DO- -DO- 10. SREEJITH SREEDHARAN,AGED 30, S/O.LATE SREEDHARAN, -DO- -DO- 11. ANOOP,AGED 28, S/O.LATE SREEDHARAN, -DO- -DO- 12. UNNIKRISHNAN,AGED 26, S/O.LATE SREEDHARAN, -DO- -DO- ADV. R.RANJINI, CAVEATOR THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.No.324 of 2009 - C --------------------------------- Dated this the 24th day of June, 2009 O R D E R The revision is directed against an order passed by the execution court accepting one of the two plans prepared by the commissioner, who was deputed to measure and prepare a plan to give effect to a compromise decree passed in O.S.NO.1358/84. Dispute raised in the revision petition is confined to only one part of the compromise decree, that is allotment of 15 cents to the decree holders in a property having an extent of 39 cents. The compromise decree provided that such 15 cents shall be demarcated taking into account the building situate therein where, admittedly, the decree holders resided. At the time when the commissioner visited the property, it was noticed that the decree holders are actually in possession of 15.5 cents, half cent in excess of the 15 cents as agreed in by the compromise decree. Commissioner prepared two plans, one providing for adjustment of half cent to the judgment debtors on the north-western side and the other on the road side. Plan I relate to the former and Plan II to the latter. The decree holder preferred Plan I whereas C.R.P.No.324 of 2009 - C 2 the judgment debtors wanted the court to accept plan II. The learned Munsiff, after considering the materials produced and hearing the counsel on both sides, found that in the area of half cent covered by Plan II, decree holders have already put up some construction and it will be inequitable to accept that plan. It was also noticed that though a compromise decree was passed as early in 1989, which provided for execution of a release deed by the judgment debtors in favour of the decree holders conferring them absolute title and possession over the properties which was agreed upon to be handed over to them, the release deed was not executed and even when the construction were put up in the property, no objections were raised by the judgment debtors, but, they remained silent spectators. Taking note of these aspects as well, the learned Munsiff found that Plan I has to be accepted. Accepting that plan, the learned Munsiff passed the impugned order which is challenged in the present revision by the judgment debtors as improper and incorrect. 2. I heard the counsel on both sides. 3. Having regard to the submissions made and taking note of the facts and circumstances presented, I find that no C.R.P.No.324 of 2009 - C 3 impropriety or illegality can be attributed to the order impugned, and in fact, the learned Munsiff has exercised his discretion correctly considering the equities to be taken note of in preferring which of the two plans prepared by the commissioner has to be accepted for giving effect to the decree. The decree holders have put up construction in the area which was identified by Plan II cannot be ignored because that is a material circumstance to show that after the compromise decree they have asserted their right over that piece of land and it was never objected to by the judgment debtors. The decree it is noticed was passed as early as in 1989, and the continuation of the execution proceedings cannot be canvassed by the judgment debtors as a circumstance to show that their failure to object to such construction was of no consequence. In the given facts of the case, I find no impropriety or illegality in the discretion exercised by the learned Munsiff in accepting Plan I for giving effect to the decree. The revision is devoid of any merit and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-