IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 WP(C).No. 32919 of 2007(R) -------------------------- AGAINST THE ORDER IN EP 69/2007 IN OS.517/2004 of PRL.M.C., KOCHI .................... PETITIONER: ------------ K. SURESH,, S/O. SUKUMARAN, KAITHAVALAPPIL, NAYARAMBALAM VILLAGE, NAYARAMBALAM, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.M.P.RAMNATH SRI.UNNIKRISHNAN. S (VELOTHIL) RESPONDENT: ------------- DINESAN, S/O. KANDAN, NIKATHITHARA HOUSE, NEDUNGAD NORTH, NAYARAMBALAM VILLAGE, KOCHI TALUK,ERNAKULAM DIST. BY ADV. SRI.C.T.JESTIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 32919 OF 2007 = = = = = = = = = = = = = = = Dated this the 10th day of March, 2008. J U D G M E N T This writ petition is preferred against the order of the Munsiff, Kozhikode in E.P.69/07 in O.S.517/04. By the said order the Court below directed the judgment debtor to construct the retaining wall on the northern side of the plaint schedule property with reference to Ext.A3(a) and (b) within seven days and in case of violation to suffer simple imprisonment. 2. Heard learned counsel for both sides. I had gone through the compromise petition. Compromise petition paragraph 2 reads as follows; “The defendants shall not construct a protective wall in east-west direction on the northern boundary of plaintiffs property in such way that any kind of damage shall not be caused to the plaintiff's property and his house therein due to the activities in defendant's “Chemen kettu'. W.P.C 32919 OF 2007 -:2:- 3. It is this part of the decree which is sought to be executed now. Unfortunately, the parties do not agree on the northern boundary and therefore it has added confusion. The writ petitioner moved a suit O.S.499/05 for an injunction and I am informed in that suit a Commissioner has been taken out in order to fix up the property. The learned counsel for the respondent would submit the sketch prepared by the village officer has been accepted by him but when it reached its execution the writ petitioner moved an application for remitting the Commissioner's plan and report. So as things stand today there is no finality regarding the fixation of northern boundary. The writ petitioner submits that the respondent is a kudikidappukaran only entitled to 10 cents of property and if that 10 cents of property as granted by the Tribunal is fixed in accordance with law all the boundaries can be fixed and on fixation of the northern boundary a wall can be constructed as stated in the decree. In the light of the above facts and circumstances it may be an attempt in vain but direct the party to construct a wall on W.P.C 32919 OF 2007 -:3:- the northern side without fixing the northern boundary. Therefore I direct the Court below in the execution petition itself to fix the northern boundary of the property which is necessary as per clause 2 of the compromise petition with the assistance of a Taluk Surveyor and the Commissioner and on fixation of the same direct the defendant to construct the wall within the stipulated time and if required to appoint a Commissioner or a person who is permissible to both sides and then dispose of the matter in accordance with law. In order to facilitate the Court below to do the same I set aside the order under challenge. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-