W.P.(C).NO. 30613 OF 2003 (T)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 WP(C).NO. 30613 OF 2003(T) -------------------------- PETITIONER(S): - --------------- KERALA STATE FILM DEVELOPMENT CORPN., REPRESENTED BY ITS MANAGING DIRECTOR, CHALACHITHRA KALABHAVAN, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENT(S): --------------- 1. AISHA BEEVI, - T.C.46/950, PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAPURAM. 2. MUHAMMED SALI FAROOK, - T.C.46/1288, PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAUPRAM. 3. AISHA BEEVI BADARUNISSA, - T.C.46/556, PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAPURAM. 4. MUHAMMED SALI SIDDIQ, - T.C.46/950, PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAPURAM. 5. AISHA BEEVI KAMARUNNISA, - T.C.46/950, PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAPURAM. 6. AISHA BEEVI SHAMSUNNISA, - T.C.46/950,PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAPURAM. WP(C).NO. 30613 OF 2003 :: 2 :: 7. MUKHAMMED SALI AL-HYDER, - T.C.46/950, PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAPURAM. 8. MUHAMMED SALI MUHAMMED YUSU, - T.C.46/950, PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAPURAM. 9. AISHA BEEVI AMINA BEEVI, - T.C.46/950, PUTHUVAL HOUSE, BEEMAPALLY, THIRUVANANTHAPURAM. ADV. SRI.PREMJIT NAGENDRAN FOR R2,3,5,6,7,9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C).NO. 30613 OF 2003 :: ::** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** EXT.P1: TRUE COPY OF THE ORDER IN E.P.NO.1028/93 IN O.S.NO.1142/1981 DATED 15.7.2003 ON THE FILE OF THE 1ST ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. ## **RESPONDENTS' EXHIBITS: NIL** //true copy// P.S. To Judge SK/- ## **S.S.SATHEESACHANDRAN, J.** -------------------------------------------------------W.P.(C) NO.30613 of 2003 -------------------------------------------------------Dated this the 25[th] day of June, 2010. ## _**JUDGMENT**_ The writ petitioner is the judgment debtor in E.P.No.1028/1993 in O.S.No.1142/1981 on the file of the First Additional Munsiff's Court, Thiruvananthapuram. The decree put in execution was one granting recovery of possession and also putting up of boundary. Admittedly, in execution of the decree, the respondent/decree holder got delivery of the property. Disputing the identity of the property delivered over, the petitioner/judgment debtor, which is a statutory corporation, moved an application for redelivery. Pending consideration of that application, the petitioner moved for appointment of an advocate commissioner, to identify the decree scheduled property and also the property delivered over. That application for appointment of a commission was dismissed by the execution court. Against that order, the petitioner moved ## _**W.P.(C) NO.30613 of 2003**_ :: 2 :: the revision as C.R.P.No.2655/98 before this court. By order dated 27.1.199, the revision was disposed, setting aside the order of the execution court, directing that court to appoint an advocate commissioner to locate the property and identify it, preparing a plan. 2. Consequent to the orders in revision, an advocate commissioner was appointed by the court. That commissioner, after local inspection, filed a report, which is stated in the order as 'preliminary report', expressing her inability to locate and identify the property shown in the plan appended to the decree. The execution court, after enquiry over the report, felt that a senior advocate has to be appointed for locating the property and in that view of the matter, the impugned order was passed directing the decree holder to deposit the batta for appointment of a fresh commission. Propriety and correctness of that order is impeached in the writ petition invoking the extraordinary jurisdiction vested ## _**W.P.(C) NO.30613 of 2003**_ :: 3 :: with this court under Article 227 of the Constitution. 3. The learned counsel for the petitioner/judgment debtor submitted that the report filed by the advocate commissioner was a final report and not a 'preliminary report' and the court below had ordered for appointment of a fresh commission, without setting aside that report. The appointment of a second commission, without setting aside the previous report of the first commissioner, it is submitted, is not proper and legal. Reliance is placed on **Swami Premananda Bharathi v. Swami Yogananda Bharathi {1985 KLT 144}** to sustain the proposition canvassed. 4. Perusing the order passed by the court below with reference to the submission made by the learned counsel, I find, the court below, after examining the commissioner, had found that an appointment of a senior counsel capable of carrying out the identification of the property, ## _**W.P.(C) NO.30613 of 2003**_ :: 4 :: with reference to the plan appended to the decree, is essential to resolve the disputes involved in the proceedings. True, in the order, there is no specific statement that the previous report by the first commissioner had been set aside. Absence of a specific statement that the previous report had been set aside in the present case is not at all material as it is evident that the court was dissatisfied with the previous report and the view taken by the first commissioner that the property is not identifiable. Further more, it has to be noticed that the appointment of the commission was made in the execution proceedings over a decree passed by a court. Needless to point out, once a decree is passed, it is the duty of the court to see that every endeavour is made to execute such decree, unless its execution is interdicted by any sustainable ground. The decision relied by the counsel can have application only in cases where a second commission is appointed by the ## _**W.P.(C) NO.30613 of 2003**_ :: 5 :: court, without examining the merit and reliability of the first report. 5. In the present case, dissatisfied with the previous report the court found that a senior advocate has to be appointed for identifying the property. There was a proper consideration of the previous report, though it is not explicitly stated in the order that the said report had been set aside. It has also to be noticed that a commission has been appointed ' _only for the purpose of identifying the decree scheduled property_ ', which had been delivered over to the decree holder to find out whether there is any merit on the case mooted by the judgment debtor for re-delivery, contending that the property delivered over was not the decree scheduled property. That being so, it is absolutely essential that a competent advocate having sufficient expertise require to be appointed for identification of the property. That alone was done by the court when it found ## _**W.P.(C) NO.30613 of 2003**_ :: 6 :: that the previous commissioner was incapable of identifying the property. The writ petition lacks merits and it is accordingly dismissed. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** sk///true copy//