Purushothaman and Santhamamma v. Divakaran, Aniruthan, Anil Kumar, Anitha and Anilajan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 OP(C).No. 99 of 2011(O) ----------------------OS.521/2002 OF MUNSIFF COURT, PATHANAMTHITTA .................... PETITIONERS (S): -------------------- 1. PURUSHOTHAMAN, AGED 57 YEARS, KIZHAKKEMUTTATHARAYIL VEEDU, KOTTAYAM MURI, V-KOTTAYAM VILLAGE. 2. SANTHAMMA, W/O.PURUSHOTHAMAN, KIZHAKKEMUTTATHARAYIL VEEDU, KOTTAYAM MURI, V-KOTTAYAM VILLAGE. BY ADV. SRI.M.NARENDRA KUMAR SMT.LAYA SIMON RESPONDENT(S): --------------- 1. DIVAKARAN, S/O.KRISHNAN, NARAYANA VILASOM, KOTTAYAM MURI, V-KOTTAYAM VILLAGE PIN 686 001. 2. ANIRUTHAN, S/O.KRISHNAN, NARAYANA VILASOM, KOTTAYAM MURI, V-KOTTAYAM VILLAGE, PIN 686 001. 3. ANIL KUMAR, S/O.KRISHNAN, NARAYANA VILASOM, KOTTAYAM MURI, V-KOTTAYAM VILLAGE, PIN 686 001. 4. ANITHA, D/O.KRISHNAN, NARAYANA VILASOM, KOTTAYAM MURI, V-KOTTAYAM VILLAGE, PIN 686 001. 5. ANILAJAN, S/O.KRISHNAN, NARAYANA VILASOM, KOTTAYAM MURI, V-KOTTAYAM VILLAGE, PIN 686 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 99/2011 ## APPENDIX ## PETITIONERS' EXHIBITS : EXT.P1: COPY OF THE GIFT DEED NO.655/81 OF SRO, KONNI. EXT.P2: COPY OF THE GIFT DEED NO.2202/1982 OF SRO, KONNI. EXT.P3: COPY OF THE REPORT MARKED AS EXT.C1 IN O.S.NO.521/2002. EXT.P3(a) : COPY OF THE PLAN MARKED AS EXT.C1(a) IN O.S.NO.521/2002. EXT.P3(b) : COPY OF THE MAHAZAR MARKED AS EXT.C1(b) IN O.S.NO.521/2002. EXT.P4: COPY OF COMMON JUDGMENT DATED 30.7.2005 IN O.S.NO.521/2002 AND O.S.NO.523/2002 IN THE COURT OF MUNSIFF, PATHANAMTHITTA. EXT.P5: COPY OF THE JUDGMENT DATED 9.11.2009 IN A.S.NO.158/2005 IN THE COURT OF THE DISTRICT JUDGE, PATHANAMTHITTA. EXT.P6: COPY OF THE E.P.NO.36/2010 EXT.P7: COPY OF THE E.A.NO.146/2010 DATED 27.8.2010. EXT.P8: COPY OF THE OBJECTION FILED BY THE RESPONDENTS TO E.A.NO.146/2010 EXT.P9: COPY OF THE ORDER DATED 30.11.2010 IN E.A.NO.146/2010. ## RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN, J.** ------------------------------------ O.P.(Civil) No.99 of 2011 ------------------------------------Dated this the 14[th] day of January, 2011 ## **JUDGMENT** The respondents filed O.S.No.521 of 2002 on the file of the court of the Munsiff of Pathanamthitta against the petitioners for fixation of boundary of the plaint schedule property and for injunction. The petitioners filed O.S.No.523 of 2002 against the first respondent and another for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property therein. Both the suits were tried together by the trial court and the suits were dismissed. On appeal as A.S.Nos.158 of 2005 and 186 of 2005, the appellate court dismissed A.S.No.186 of 2005 filed by the petitioners against the judgment and decree in O.S.No.523 of 2002 and allowed A.S.No.158 of 2005 filed by the respondents against the decree in O.S.No.521 of 2002. The operative portion of the judgment reads as follows : O.P.(Civil) No.99/2011 2 “In the result, A.S.No.186/05 is dismissed. Parties will bear their respective costs. A.S.No.158/05 is allowed with modification. That part of the judgment and decree of the court below in O.S.No.521 of 2002 declining the prayer for fixation of boundary is set aside. The rejection of the prayer for injunction in the suit is confirmed. The appellants/plaintiffs are permitted to put up a boundary of their choice at their expense along the line 'R S V W T R 2' in Ext.C1(b) plan. Ext.C1(b) plan will be appended to the decree. Parties will bear their respective costs.” 2. The appellate court held that both the parties have not made out a case for the grant of the discretionary remedy of injunction. 3. The respondents filed E.P.No.36 of 2010 in O.P.(Civil) No.99/2011 3 O.S.No.521 of 2002 to execute the decree. The Execution Petition was allowed and the Amin executed the decree. 4. The petitioners filed E.A.No.146 of 2010 in the Execution Petition under Section 47 of the Code of Civil Procedure for issuing a direction to the decree holders to construct the compound wall on the boundary in such a way not to obstruct the pathway leading to the property in the possession of the petitioners. The court below, by the order impugned, dismissed the application. The court below noticed that no objection was filed by the judgment debtors in the Execution Petition. The executing court is bound to execute the decree. It was also noticed by the appellate court that the contention raised by the petitioners that the boundary through the line fixed by the appellate court would obstruct the pathway leading to the property in the possession of the petitioners, is a new contention which was not taken in the suits. Such a contention cannot be put forward in the O.P.(Civil) No.99/2011 4 execution proceedings. 5. In the admitted factual situation, an application under Section 47 of the Code of Civil Procedure is not maintainable. The contention raised by the petitioners that if a compound wall is constructed on the boundary fixed by the court, it would obstruct the pathway leading to the property in the possession of the petitioners, should have been raised in defence to the suit filed by the respondents for fixation of boundary. The petitioners also filed another suit for permanent prohibitory injunction. In that suit also, a contention regarding the pathway was not raised. If so, such a contention cannot be put forward in the form of an application under Section 47 of the Code of Civil Procedure. The questions which could be raised under Section 47 are those relating to the execution, discharge or satisfaction of the decree. A possible contention which the defendants could take in the suit could not be taken as a ground for O.P.(Civil) No.99/2011 5 maintaining an application under Section 47, in the execution proceedings initiated by the decree holders. 6. The learned counsel for the petitioners relied on **Gopalakrishna Kamath vs. Bhaskar Rao (1988 (2) KLT 352)** . In that case the contention raised by the petitioner therein was while delivering the property in execution of the decree, certain movables belonging to the petitioner therein were also wrongly delivered. The petitioner, therefore, filed an application in the execution proceedings for getting back those movable items. In that context, the learned Single Judge held that if the property not covered by the decree is delivered in execution of the decree, there arises a situation which, in law is called “action in excess of the decree”. In such cases the proper remedy for the judgment debtor to recover the property delivered in excess of the decree is by an application under Section 47 and not by a separate suit. O.P.(Civil) No.99/2011 6 ## 7. In **Merla Ramanna vs. Nallaparaju and others** **(AIR 1956 S.C. 87)** , it was held that when a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between the parties to the decree, only by an application under Section 47 of CPC and not in a separate suit. 8. The learned counsel for the petitioners submitted that the plan attached to the decree would indicate that a pathway leads to the property in the possession of the petitioners and if execution of the decree is made in such a way denying the right of the petitioners to use the pathway, the remedy of the petitioners is to file an application under Section 47 and not to file a separate suit. 9. To consider whether the application under Section 47 of the Code of Civil Procedure is maintainable or whether a O.P.(Civil) No.99/2011 7 separate suit would be maintainable or whether the suit would be barred under Section 47, the facts and circumstances of the case have to be analysed. If it is found that the question which is raised by the judgment debtors could be raised only in execution in terms of Section 47 of the Code of Civil Procedure, a separate suit would be barred. The principle behind Section 47 is to avoid multiplicity of suits and to ensure a complete and final disposal of the disputes in the same execution proceeding itself and not by a separate suit. The bar under Section 47 cannot be made use of by the judgment debtors to put forward contentions which are alien to the scope of Section 47 and to invite the decision of the court on those contentions in the execution proceedings. In other words, a contention which should be raised in a separate suit should not be allowed to be raised by way of an application under Section 47. The very purpose of Section 47 would be defeated if the judgment debtor is allowed to raise contentions which are beyond the scope of Section 47. If such O.P.(Civil) No.99/2011 8 a contention is allowed to be raised, it would defeat the rights of the respondents therein (decree holders) to put forward their defence and to adduce evidence on those questions, which should be made only in a suit and not in an application under Section 47. In the present case, the contention as now raised by the petitioners could be a defence in the suit filed against them or it could be a ground of attack in the suit for an injunction filed by them. Having not raised the contention in the manner mentioned above, the petitioners cannot be permitted to raise that contention in an application under Section 47 of the Code of Civil Procedure. It is not necessary to decide in this Original Petition as to whether the petitioners would be precluded from bringing a fresh suit and whether a fresh suit would be barred by the principle of constructive resjudicata. That question does not arise in the present proceeding. 10. There is no case for the petitioners that there was O.P.(Civil) No.99/2011 9 excess delivery or that the execution of the decree was made in a manner contrary to the terms of the decree. There is also no case that the decree is not executable. The petitioners do not have a case that the decree is void. Their only contention is that their right of way should be protected. That right was not adjudicated in the suit since such a contention was not raised. The petitioners are not entitled to take shelter under Section 47 of the Code of Civil Procedure to raise such a contention in execution. The order passed by the court below is legal and proper. No interference is called for. The Original Petition is accordingly dismissed. **K.T.SANKARAN JUDGE** csl