IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 OP(C).No. 2633 of 2011(O) ------------------------------------- [AGAINST THE ORDER IN E.P.336/2010 IN O.S.NO.280/1964 DATED 27/07/2011 OF THE ADDITIONAL MUNSIFF'S COURT-I, NEYYATTINKARA] .................... PETITIONER/JUDGMENT DEBTOR/9TH DEFENDANT: ---------------------------------------------------------------------------- SREEKALA, D/O.KAMALAMMA, RESIDING IN PRASANTH NILAYAM, NEAR R.C. CHURCH, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. BY ADVS. SRI.R.S.KALKURA, SRI.M.S.KALESH, SRI.HARISH GOPINATH, SRI.V.VINAY MENON, SRI.S.MANIKANTAN NAIR. RESPONDENT/DECREE HOLDER/2ND PLAINTIFF: ----------------------------------------------------------------------- LEELA, D/O.SUMAMGI, RESIDING IN THYPARAMBU VEEDU, PANAMBALLY NAGAR DESOM, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, NOW RESIDING AT KANJIRAVILAKATHU VEEDU KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2633/2011-O: APPENDIX PETITIONER'S EXHIBITS: EXT.P.1: COPY OF THE PRELIMINARY JUDGMENT DTD. 09/10/1974 IN O.S.280/1964. EXT.P.2: COPY OF THE FINAL JUDGMENT IN O.S. 280/1964 DTD. 15/07/2010. EXT.P.3: COPY OF E.P.336/2010. EXT.P.4: COPY OF THE OBJECTION FILED BY THE PETITIONER TO E.P.336/2010 DTD. 18/06/2011. EXT.P.5: COPY OF THE MEMORANDUM OF APPEAL IN A.S. 19/2011 OF THE SUBORDINATE JUDGE'S COURT, NEYYATTINKARA. EXT.P.6: COPY OF THE APPLICATION TO CONDONE THE DELAY FILED BY THE PETITIONER. EXT.P.7: COPY OF THE APPLICATION TO STAY THE EXECUTION OF THE FINAL DECREE. EXT.P.8: COPY OF THE APPLICATION FOR ADVANCEMENT OF THE APPEAL FROM 24/08/2011 FILED BY THE PETITIONER ON 18/06/2011 IN A.S. 19/2011. EXT.P.9: THE COMMISSION REPORT AND PLAN IN THE FINAL DECREE PROCEEDINGS DTD. 25/03/2010. EXT.10: COPY OF THE ORDER IN E.P.336/2010 IN O.S. 280/1964 DTD. 27/07/2011 OF THE ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2633 of 2011 ==================================== Dated this the 10th day of August, 2011 J U D G M E N T Ninth defendant in O.S. No.280 of 1964 of the court of learned Principal Munsiff-I, Neyyattinkara is the petitioner before me challenging Ext.P10, order allowing execution of the final decree for partition. As per the said order, respondent to whom plot 'ABLKJI' in Ext.C3(a) plan was allotted, was permitted to put up a boundary for the said property. 2. It is contended by learned counsel for petitioner that Ext.P10, order suffers from illegality in that it has gone beyond the decree itself which is not permitted under law. It is contended that the decree does not permit putting up of boundary, it merely allotted shares to the respondent permitting her for enjoyment of that property. It is contended that the executing court having refused to allow the respondent demolish the alleged arial trespass into 'ABLKJI' plot, should not have allowed respondent to put up boundary for the said plot. The further contention is that challenging the final decree an appeal has been preferred with a petition to condone the delay. In the circumstances it is prayed O.P(C) No.2633 of 2011 -: 2 :- that Ext.P10, order may be quashed to the extent it permitted respondent put up boundary for the plot allotted to her or in the alternative, execution of the decree may be stayed until the appeal is taken up for hearing. Leaned counsel placed reliance on the decisions in Rameswhar Dass Gupta v. State of U.P ([1996] 5 SCC 728) and Deepa Bhargava v. Mahesh Bhargava ([2009] 2 SCC 294). 3. Both decisions relied by learned counsel referred to lack of jurisdiction for the executing court to go behind the decree. It is held that executing court is bound to obey the decree in the way it is passed. 4. I think there could be no dispute regarding that position of law. Question is whether on the facts of the case permitting the respondent to put up a boundary for 'ABLKJI' plot allotted to her as per Ext.P3 would amount to going behind the decree or violating terms and conditions of the decree. It is true that the decree is for partition. But I must bear in mind that allotment of share to the respondent enabled her separate possession and enjoyment of the property. Putting up proper boundary for the property is involved in separate possession and enjoyment unless any other party has any right to access through O.P(C) No.2633 of 2011 -: 3 :- the said property. The power of the executing court to permit first respondent to put up boundary in the plot allotted to her by the decree is in-built in the decree itself. Under Section 51(e) of the Code of Civil Procedure (for short, “the Code”) it is within the power of the executing court to execute the decree in such manner as the relief granted may require. Almost similar provision is contained in Rule 11(2)(j)(v) of Order XXI of the Code as well. The said provision says that it is within the power of the court to execute the decree as the nature of the reliefs granted may require. Reading these provisions together and understanding the purport of the decree for partition whereby a plot is given to the respondent for separate possession and enjoyment I am unable to understand that the power to permit the respondent put up a boundary to protect the property for such separate possession and convenient enjoyment of the suit property is beyond the power of the executing court or beyond the scope of the decree so far as petitioner has no claim over the said property recognized by the decree. 5. It is apposite to refer to the observations made by the Supreme Court as to the manner in which procedural law is to be incorporated, in Chinnammal v. Arumugham (AIR O.P(C) No.2633 of 2011 -: 4 :- 1990 SC 1828). It is observed, “It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible”. (emphasis supplied) 6. I am inclined to think that as the decree enables respondent to have separate possession and quite enjoyment of the property, putting up boundary for the plot allotted to her is rendering justice and is within the power of the executing court, rather than driving the respondent file a separate suit for putting up boundary. 7. So far as the alternative relief prayed for is concerned, it is needless to say that the decree if executed will be subject to the result of the appeal which is said to be pending. O.P(C) No.2633 of 2011 -: 5 :- With the above observation this Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv