IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 9127 of 2009(O) ------------------------- OS.290/2005 of MUNSIFF COURT, PALAKKAD .................... PETITIONER(S): --------------- C.L.VENKITACHALAM S/O. LAKSHMINARAYANA COUNDER, AGED 60 YEARS, KESAVA FARM, KANJIKODE, PUDUSSERY AMSOM, PALAKKAD TALUK. BY ADV. SRI.BINOY VASUDEVAN RESPONDENT(S): --------------- 1. C.L.GOPALAKRISHNAN, S/O. LATE LAKSHMINARAYANA COUNDER, AGED 58 YEARS, KANJIKODE, PUDUSSERY AMSOM, PALAKKAD TALUK. 2. C.L.PARAMATHAMAN S/O. LATE LAKSHMINARAYANA COUNDER, KANJIKODE, PUDUSSERY AMSOM, PALAKKAD TALUK. 3. C.L.RADHAKRISHNAN, S/O. LATE LAKSHMINARAYANA COUNDER, NO.97, WEST PERIYASWAMY ROAD, R.S.PURAM, COIMBATORE-2. 4. VALSALA W/O. C.L.THANKAVELU, NO.36, UNION BANK ROAD, 2ND STREET, PERIYANIKAN PALAYAM, COIMBATORE. 5. RANGANAYAKI W/O. T.KANNAPPAN, NO.91, RAMACHANDRA BOSE, R.S.PURAM, COIMBATORE-2. 6. P.CHITHRA W/O. L.PADMANABHAN, NO.1/188, SELVAPURAM, KOVILPALAYAM, POLLACHI-642 011, COIMBATORE. ADV. SRI.A.K.SESHADRI FOR R3-6 SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.A.R.NIMOD FOR R1 SRI.C.A.ANOOP FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ---------------------------------------- W.P.(C).No.9127 of 2009 ---------------------------------------- Dated this the 26th day of March, 2009 JUDGMENT The petitioner filed O.S.No.290 of 2005, on the file of the court of the Munsiff of Palakkad, against the respondents for permanent prohibitory injunction. The plaint schedule property is shown as having an extent of 5 acres and 8½ cents in different survey numbers. The suit was decreed ex-parte on 4.8.2007. Alleging that the respondents tried to trespass upon the plaint schedule property and to destroy the house situated therein, the petitioner filed E.P.No.234 of 2008 for enforcement of the decree. In the Execution Petition, the petitioner filed E.A.No.112 of 2009 seeking police help to enforce the decree. A Commissioner was appointed in the execution proceedings to identify the property, who filed Ext.P6 report dated 26.8.2008. The same Commissioner was appointed again to note the subsequent developments caused as a result of the alleged activities indulged in by the respondents. After the second inspection, the Commissioner filed Ext.P8 report dated 18.3.2009. In that report, the Commissioner stated that after WPC No.9127/2009 2 measuring out the property, he approached the Village Officer for necessary help. The Village Officer stated that plan in respect of the old survey is not available in the Village Office. Certain other difficulties were expressed by the Village Officer in respect of measurement of the property on account of the election duty assigned to the Village Assistant. The Commissioner stated that it is necessary to seek the help of a private surveyor to measure out the property and to identify the same. A request was made by the Commissioner to the court to seek the assistance of a private surveyor. 2. The grievance of the petitioner is that the respondents have indulged in acts in violation of the decree passed by the court and that urgent remedial measures are necessary. However, according to the petitioner, the court below did not consider the grievance of the petitioner properly and has adjourned the case to 23.5.2009. The prayer made in the Writ Petition is to issue a direction to the executing court to consider and pass final orders in E.A.No.112 of 2009, the application filed by the petitioner for necessary police aid to execute the decree. 3. A counter affidavit is filed on behalf of respondent WPC No.9127/2009 3 Nos. 3 to 6 wherein it is stated that in respect of 80.66 cents of land in survey No.612/2 (Resurvey No.341/4), a suit for partition was filed by the sixth respondent and the matter was compromised before the Lok Adalath as evidenced by Ext.R3(a) award dated 29.3.2008. A final decree application was filed by the sixth respondent before the Munsiff Court, Palakkad as I.A.No.1498 of 2008. On 7th November 2008, a final decree was passed. It is stated that pursuant to the final decree, the sharers are in possession of the respective plots allotted to them. The aforesaid respondents contended that the petitioner has no right or title or possession in respect of the property involved in O.S.No.534 of 2007. They contend that the property involved in O.S.No.290 of 2005 has to be identified and only thereafter the decree could be enforced. 4. The petitioner is not a party to O.S.No.534 of 2007. The second respondent is also not a party to that suit. O.S.No.534 of 2007 was filed by the sixth respondent and respondent Nos.1, 3, 4 and 5 are the defendants in that suit. 5. In the nature of the contentions put forward by the parties, it is necessary to identify the properties involved in WPC No.9127/2009 4 O.S.No.290 of 2005. For that purpose, a Commissioner was appointed. The Commissioner filed a report stating that a private surveyor is to be appointed for measuring out and demarcating the plaint schedule property. The matter is pending before the court below for appropriate orders. In the nature of the disputes involved, it is not proper to think that any court will be able to dispose of the Execution Petition before the court closes for summer holidays. Without properly identifying the property, it is not possible to pass any order rendering police assistance to enforce the decree. So, the first step to be taken in the matter is identification of the property. Now, the only question that remains to be considered is whether the Execution Petition is to be directed to be posted before the holidays and the court below directed to issue appropriate orders on the report dated 18.3.2009 submitted by the Commissioner. The prayer made by the petitioner to pass urgent orders on the report dated 18.3.2009 submitted by the Commissioner is just and reasonable. At the same time, the prayer made by the petitioner to dispose of E.A.No.112 of 2009 in E.P.No.234 of 2008 urgently cannot be granted directing the court to dispose of the matter before WPC No.9127/2009 5 summer holidays. The Principal Munsiff’s Court, Palakkad, shall consider Ext.P8 report dated 18.3.2009 submitted by the Advocate Commissioner requesting for appropriate orders in the matter of appointment of a private surveyor to measure out and identify the property, as expeditiously as possible and at any rate before the court closes for summer holidays. All other reliefs sought for in the Writ Petition are rejected. The Writ Petition is partly allowed as above. K.T.SANKARAN, JUDGE csl