IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 OP(C).No. 3273 of 2011(O) ------------------------- OS.1689/1994 of PRL.M.C.,TRIVANDRUM ......................... PETITIONERS (S): ----------------- 1. KUMARI VALSALA, W/O. MADHUSOODHANAN NAIR, AGED 57 YEARS, RESIDING AT 'KARTHIKA', NALANCHIRA, THIRUVANANTHAPURAM. 2. MADHUSOODHANAN NAIR, S/O. VELAPPAN NAIR, AGED 63 YEARS, RESIDING AT -DO- BY ADV. SRI.AYYAPPAN SANKAR SRI.G.SURARSHAN RESPONDENT(S): --------------- KOMALADEVI, W/O. CHAMU, AGED 58 YEARS, RESIDING AT POURNAMI, NALANCHIRA, THIRUVANANTHAPURAM-695015. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SU O.P.C.NO.3273/2011 APPENDIX PETITIONERS' EXHIBITS: P1: A COPY OF THE PLAINT IN O.S. 1689/1994 BEFORE THE HONOURABLE MUNSIFF'S COURT THIRUVANANTHAPURAM. P2: A COPY OF THE EXECUTION PETITION. P3: A COPY OF OBJECTION FILED BY THE PETITIONERS TO THE EXECUTION PETITION. P4: A COPY OF THE COMMISSION APPLICATION FILED AS E.A.NO.398/2011 IN O.S. NO. 1689/1994. P5: A COPY OF OBJECTION FILED BY THE RESPONDENT TO EXHIBIT P4 COMMISSION APPLICATION. P6: COPY OF THE ORDER DATED 22-09-2011 OF THE HONOURABLE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM DISMISSING EXHIBIT P4 EA NO.398/2011 IN O.S. NO.1689/1994. RESPONDENT'S EXHIBITS: NIL. /TRUE COPY/ P.A. TO JUDGE SU THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.3273 of 2011 --------------------------------------- Dated this 12th day of October, 2011 JUDGMENT Petitioners are judgment debtors 1 and 2 in E.P.No.165 of 2000 in O.S.No.1689 of 1994 of the Court of learned Principal Munsiff, Thiruvananthapuram. Respondent obtained a decree declaring her right of easement over plaint B schedule way lying along the western side of plaint A schedule belonging to her and for construction of boundary wall on the north, east and south of plaint A schedule. Respondent filed E.P.No.165 of 2000 and requested to depute an Amin for construction of boundary wall along the QRS line in the plan accepted by the trial court and appended to the decree. Petitioners filed Ext.P3, objection contending that respondent has already constructed a rubble foundation around the 12½ cents belonging to her and hence it was not necessary to construct any boundary wall as prayed for in E.P.No.165 of 2000. Petitioners also filed Ext.P4, application for the appointment of a commission to report on the said foundation (allegedly) constructed by the respondent, according to the petitioners on the four sides of plaint A schedule and its oldness. That application was objected by the respondent by O.P(C).No.3273 of 2011 -: 2 :- Ext.P5. Respondent claimed that on E.A.No.361 of 2000, the executing court had allowed construction of boundary wall as per order dated 03.10.2002, petitioners challenged that order in C.R.P.No.2505 of 2002 which was dismissed and later, petitioners caused their daughter to file E.A.No.1050 of 2002 to obstruct execution proceeding. That application was dismissed on 17.12.2002. Petitioners' daughter filed C.M appeal No.9 of 2003 and obtained stay of execution proceeding. E.P.No.165 of 2000 was closed on 19.06.2003 on account of stay. The C.M appeal was later dismissed. Petitioners' daughter filed a review petition which was dismissed on 02.06.2009. Things did not end there. Petitioners filed a suit to set aside the decree in O.S.No.1689 of 1994. According to the petitioners, that suit is posted on 19.10.2011. Executing court observed that matters requested to be ascertained through commission in Ext.P4, application is not relevant for a decision and that by order dated 17.12.2002 Advocate Commissioner was directed to supervise construction of compound wall as the decree permits. In view of that, executing court dismissed Ext.P4, application by Ext.P6, order observing that there is no new development to be noted by the Advocate Commissioner. O.P(C).No.3273 of 2011 -: 3 :- 2. Apprehension of petitioner is that since the rubble foundation has already been constructed by the respondent, the proposed construction would interfere with their right of access through the way. I do not find any reason to uphold that apprehension. I am sure that execution will only be in terms of the decree. In that view of the matter I do not find reason to interfere with Ext.P6, order. This original petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-