IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 WP(C).No. 16859 of 2010(O) -------------------------- AGAINST THE ORDER IN EA 11/10 & EP 81/09 IN O.S.156/2005 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER(S)/PLAINTIFF/COUNTER CLAIM DEFENDANT :- --------------------------------------------------------------------------------------- MUHAMMED BASHEER, AGED 59 YEARS, S/O.KHADARKUNJU RAWTHER, MUTHALIPARAMBIL HOUSE, PUZHAVATHU MURI, CHANGANCHERRY VILLAGE, CHANGANACHERY TALUK. BY ADV. SRI.RAFFEEKH KOTTAKKAL RESPONDENT(S)/DEFENDANT/COUNTER CLAIM PLAINTIFF :- ---------------------------------------------------------------------------------------- SOMASEKHARAN @ SOMAN, AGED 50 YEARS, RESIDING AT ARCHANA, PANACHIKKAVU P.O. AVANI BHAGAM, CHANGANCHERY VILLAGE CHANGANACHERY TALUK FROM LAKSHMI BHAVAN, PUZHAVATHU MURI, CHANGANACHERY VILLAGE, CHANGANACHERY TALUK. ADV. SRI.S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 16859 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of decree in O.S.No.156/2006 of Munsiff's Court, Changanacherry dated 14.8.2008. Ext.P2 :- Copy of judgment in O.S.No.156/2006 of Munsiff's Court, Changanacherry dated 14.8.2008. Ext.P3 :- Copy of order in E.A.No.11/10 in E.P.81/09 in O.S.No.156/2006 of M.C. Changanacherry. Respondent's Exhibits :- NIL //True Copy// P.A. To Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ W.P.(C) No.16859 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 21st day of June 2010 J U D G M E N T Petitioner filed O.S.No.156 of 2005 in the court of learned Munsiff, Changanachery for a decree for prohibitory injunction against respondent annexing portion of item No.3. Respondent/defendant filed a counter claim for fixation of boundary. Learned Munsiff granted decree in favour of petitioner/plaintiff and counter claim also was allowed allowing fixation of boundary as per Ext.C2(a) plan. Respondents herein filed E.P.No.81 of 2009 for fixation of boundary. The Advocate Commissioner who prepared Ext.C2(a) plan was deputed to fix boundary as per Ext.C2(a) but the Commissioner reported that he could not complete the work since he was obstructed by the petitioner. Petitioner filed E.A.No.11 of 2010 for appointment of a new W.P.(C) No.16859 of 2010 : 2 : Commissioner to identify the property. But the executing court held that there is no necessity to appoint a new Commissioner and dismissed the application. That order is under challenge. 2. Learned counsel for petitioner argued that since the Advocate Commissioner already appoint was not able to identify the property, a new Commissioner may be appointed. Learned counsel for respondent contends that Commissioner could not complete the work only as he was obstructed by petitioner. 3. Having regard to the circumstances stated before me I do not think it necessary to appoint a new Commissioner particularly as Ext.C2(a) was prepared by the Advocate Commissioner who was deputed by the executing court for identification of the properties. It will be open to the executing court to depute the very same Commissioner who prepared Ext.C2(a) to make further inspection and identify the property. It is not necessary to separately W.P.(C) No.16859 of 2010 : 3 : identify the property in the light of Ext.C2(a). What is necessary is to fix the boundary as per Ext.C2(a). The order under challenge does not require interference. Accordingly the writ petition fails and it is dismissed. THOMAS P. JOSEPH, JUDGE. Jvt