High Court of KeralaSingle Judge2012-02-06Writ petition allowed; impugned orders set asid...

C. Prasannakumari v. C. Sudhakaran and Saralamma

Case / Petition Number:WPC.No.21097 of 2010 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. T. Sankaran
Judgment Date: 2012-02-06
Court Decision / Holding: Exhibits P8 and P10 are set aside; the executing court shall consider the matter afresh and pass appropriate orders, including appointing a Commissioner if necessary to identify and fix the boundaries as per the decree.
Final Disposition: Writ petition allowed; impugned orders set aside; matter to be reconsidered by the executing court in light of decree and law.

Parties to the Case

Appellants / Petitioners

C. Prasan nakumari

Respondents

C. Sudhakaran
Saralamma

Legal Representation & Advocates

Counsels for Petitioners

• B. Krishna Mani

Counsels for Respondents

• Babu Joseph Kuruvathazha

Case Synopsis & Summary

This writ petition (WPC 21097 of 2010) challenges two execution court orders (Exhibits P8 and P10) arising from an ex parte decree in OS No.435 of 2005 passed by the Munsiff’s Court, Punalur, on 17 February 2006. The suit sought declaration of easement of necessity to access the plaint schedule property and fixation of eastern and southern boundaries, along with demolition of an encroachment claimed to be laid by the first defendant without the plaintiff’s consent. E.P. 69/2007 and E.A. 126/2007 were filed to execute the decree and appoint a Survey Commissioner to fix boundaries; the court below dismissed these prayers, stating that the boundary could not be determined from the decree and that a detailed enquiry cannot be conducted in execution proceedings (Exhibit P8). The petitioner challenged the orders asserting that the decree is executable and that a Commissioner can be appointed in execution to identify the property, as per the principle in P.N.Kurian v. Thulasidas. The court below later dismissed E.A.132/2009 for review (Exhibit P10) but did take note that the principles from Kurian were not expressly referenced in P8. The Kerala High Court, relying on these principles and Article 227, set aside the impugned orders, holding that the executing court must consider the matter afresh and pass appropriate orders, including appointing a Commissioner if necessary, to execute the decree."

Provisions of Law Cited

Article 227 of the Constitution of India

Legal Doctrines & Maxims

Ex parte decree
Appointment of a Survey Commissioner in execution proceedings

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner/decree holder contends that the decree in OS 435/2005 fixes eastern and southern boundaries and that execution is permissible. It seeks appointment of a Survey Commissioner to identify the plaint schedule property and to demarcate the boundary, arguing the lack of appearance by defendants does not bar execution. It asserts the decree is executable and that the court can assist through commissioners to fulfil its terms, even if trial proceedings were incomplete or the boundary plan was not attached.

Contentions of Respondents

The respondents contend that the boundary line is not clearly defined in the decree, and that a detailed boundary enquiry cannot be conducted within execution proceedings. They rely on the court’s earlier reasoning in Exhibit P8 that the boundary cannot be fixed in such proceedings and that a Commission cannot be appointed at this stage; they urge adherence to procedural limits and caution against revisiting trial-stage procedures in execution.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
P. N. Kurian v. Thulasidas	AIR 2003 Kerala 288	Positive	The judgment cites this case to support the proposition that a Commissioner can be appointed in execution proceedings to identify the plaint schedule property.
Smt. Lalmuni Devi v. Shiv Shankar Tiwary	AIR 1980 Patna 184	Mentioned Only	Cited as background authority; not expressly applied to the present outcome.
Madhukar Trimbak Gore v. Vasant Ramkrishna Kolhatkar	AIR 1983 Bombay 277	Mentioned Only	Cited in passing; not the basis for the decision here.
Kassim Beevi v. Meeranchi Mytheen Beevi	AIR 1987 Kerala 226	Mentioned Only	Cited in discussion; no direct impact on the ruling.
Chacko Geevarghese v. State of Kerala	AIR 1982 Kerala 333	Mentioned Only	Cited as related authority; not expressly applied.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against C. Prasannakumari v. C. Sudhakaran and Saralamma and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933 WPC.No. 21097 of 2010 (O) ------------------------OS.435/2005 of MUNSIFF COURT, PUNALUR PETITIONER(S): ------------- C.PRASANNAKUMARI, VATTAPPADA, PLANCHERY P.O. PUNALUR FORM KISHOR BHAVAN PUNNALA, PIRAVANTHOOR VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): -------------- 1. C.SUDHAKARAN, P.W.D.CONTRACTOR, SWAPNA BHAVAN, BHARANIKKAVU WARD, PUNALUR MUNICIPALITY, PUNALUR-692 505. 2. SARALAMMA, W/O.SUDHAKARAN, 692 505. -DO- -DO- R,R1 & 2 BY SRI.BABU JOSEPH KURUVATHAZHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 21097/2010 ## APPENDIX ## PETITIONER'S EXHIBITS : - EXT.P1: COPY OF THE PLAINT, OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR DATED 22.12.2005. - EXT.P2: COPY OF THE JUDGMENT DATED 17.2.2006 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR. - EXT.P3: COPY OF DECREE DATED 17.2.2006 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR. - EXT.P4: COPY OF EP NO.69/2007 DATED 14.12.2007 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR. - EXT.P5: COPY OF THE OBJECTION IN EP NO.69/2007 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR DATED 22.7.2008. - EXT.P6: COPY OF THE APPLICATION EA NO.126/07 IN EP NO.69/07 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR DATED 14.12.2007. - EXT.P7: COPY OF THE OBJECTION DATED 13.10.2009 IN EA NO.132/09 IN EP NO.69/07 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR. - EXT.P8: COPY OF THE ORDER DATED 22.7.2009 IN EA NO.126/07 IN E.P.69/07 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR. - EXT.P9: COPY OF THE EA 132/09 DATED 12.8.09 IN EP 69/07 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR. - EXT.P10: COPY OF THE ORDER DATED 23.6.2010 IN EA 132/09 IN EP 69/07 IN OS NO.435/2005 BEFORE THE MUNSIFF'S COURT, PUNALUR. ## RESPONDENTS' EXHIBITS : NIL //TRUE COPY// PA TO JUDGE ## **K.T.SANKARAN, J.** -------------------------------- ## W.P.(C)No.21097 of 2010 -------------------------------Dated this the 6[th] day of February, 2012 ## _**JUDGMENT**_ The decree holder in O.S.No.435 of 2005 on the file of the Munsiff's Court, Punalur, challenges the order dated 22[nd] July, 2009 in E.A.No.126 of 2007 in E.P.No.69 of 2007 as well as the order dated 23[rd] June, 2010 in E.A.No.132 of 2009. 2. The suit was filed for declaration of easement of necessity for access of the plaintiff to the plaint schedule property, fixation of eastern and southern boundaries of the plaint schedule property and to demolish the boundary illegally laid by the first defendant on the southern side of the plaint schedule property without the knowledge and consent of the plaintiff. The respondents are the defendants in the suit. The defendants remained ex-parte in the suit. The trial court passed a judgment and decree on 17[th] February, 2006 as prayed for. WPC 21097/2010 2 3. E.P.No.69 of 2007 was filed by the petitioner to execute the decree. The prayer in the Execution Petition was to appoint a Survey Commission to fix the eastern and southern boundaries of the decree schedule property and to demolish the boundary illegally and wrongfully laid by the first defendant on the southern side of the property. E.A.No.126 of 2007 was filed by the decree holder to appoint a Survey Commission to survey and fix the eastern and southern boundaries of the property. 4. The court below passed Exhibit P8 order dated 22[nd] July 2009 rejecting the prayer for fixation of boundary. E.A.No.126 of 2007 was also dismissed. E.P. was posted for further steps with respect to reliefs B to E made therein. 5. The petitioner filed E.A.No.132 of 2009 to review the order dated 22[nd] July 2009. It was contended that the Execution Petition was maintainable in the light of the decision in P.N.Kurian vs. Thulasidas (AIR 2003 Kerala 288). The court below dismissed E.A.No.132 of 2009 by Exhibit P10 order dated 23[rd] June, 2010. WPC 21097/2010 3 6. The aforesaid orders dated 22.7.2009 and 23.6.2010 are under challenge in this Writ Petition. 7. As per Exhibit P8 order dated 22[nd] July, 2009, the court below rejected the prayer for execution on the following grounds : - (a) What exactly is the boundary line over which the boundary is to be fixed is not clear from the decree. - (b) a detailed enquiry regarding fixation of boundary cannot be carried out in the execution proceedings. 8. In Exhibit P10 order in E.A.No.132 of 2009, the court below held that though the decision in P.N.Kurian vs. Thulasidas (AIR 2003 Kerala 288) was not referred to in Exhibit P8 order, the principles were taken into account by the court. 9. The trial court passed an ex-parte decree. The relief for fixation of boundary was also granted by the trial court. The decree in respect of that relief is clear and unambiguous. That the defendants did not appear and therefore, the trial court did not WPC 21097/2010 4 consider the merits of the case in detail is not a ground to hold that the decree cannot be executed. The gist of the decree is to fix the boundary on the eastern and southern sides of the plaint schedule property. In execution of the decree, the same has to be done by fixing the eastern and southern boundaries. This exercise could have been done by the trial court before granting the decree. However, the court did not insist on the plaintiff to do so, particularly, since the defendants were ex-parte. The plaintiff cannot be blamed for not taking out a Survey Commission at the trial stage in the absence of any written statement and in the absence of appearance by the defendants. If the view taken by the court below is accepted, that will be a bonus to the defendants for their non appearance. Whatever may the decree, it has to be executed, so long as the decree is executable. There is no case that the decree is void. There is also no case that the decree is inexecutable. If the decree can be executed by fixing the boundary after ascertaining the same as per a Survey Commission, the executing court is bound to execute the decree after following such a procedure. The court cannot reject the prayer for issuing a Commission on the ground that the same WPC 21097/2010 5 should have been done at the trial stage. The court having passed a decree for fixation of boundary even without there being a Commissioner's plan and report, the decree holder cannot be blamed for the lapses, if any, on the part of the court in not following the so called proper procedure. There is no ambiguity in the decree, as the court below erroneously thought. 10. The rejection of the prayer to appoint a Commissioner on the ground that a detailed enquiry regarding fixation of boundary cannot be carried out in the execution proceedings, was improper. In P.N.Kurian vs. Thulasidas (AIR 2003 Kerala 288), it was held that a Commissioner can be appointed at the execution stage to identify the plaint schedule property. In that case also, the decree was an ex-parte decree. In the Execution Petition, the decree holder prayed for measuring out the plaint schedule property and for effecting delivery of possession. The judgment debtors opposed the application on the plea that such an exercise could not be made in the execution proceedings as no plan was attached to the decree. It was contended that identification of the property could not be made in the execution proceedings. The WPC 21097/2010 6 contentions raised by the judgment debtors were negatived by this Court in P.N.Kurian's case. In P.N.Kurian vs. Thulasidas (AIR 2003 Kerala 288), the decisions in Smt.Lalmuni Devi vs. Shiv Shankar Tiwary (AIR 1980 Patna 184), Madhukar Trimbak Gore vs. Vasant Ramkrishna Kolhatkar (AIR 1983 Bombay 277), Kassim Beevi vs. Meeranchi Mytheen Beevi (AIR 1987 Kerala 226) and Chacko Geevarghese vs. State of Kerala (AIR 1982 Kerala 333) were relied on. The court below erred in dismissing the application for execution in so far as it relates to the prayer for fixation of boundaries. The court below also erred in dismissing the application for appointing a Commissioner. The orders impugned are without jurisdiction, warranting interference under Article 227 of the Constitution of India. Accordingly, Exhibits P8 and P10 orders dated 22.7.2009 and 23.6.2010 are set aside. The executing court shall consider the matter afresh and pass appropriate orders. **K.T.SANKARAN JUDGE** csl