Kerala High Court
Vilasini Amma vs Parukutty Amma
Author: A. V. Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934
CRP.No. 447 of 2009 ( )
-----------------------
E.P. NO. 29/2008 IN OS.96/1998 of MUNSIFF COURT, ATTINGAL
-------------
REVISION PETITIONER/DECREE HOLDER/PLAINTIFF :
------------------------------------------------------------------------------
VILASINI AMMA, D/O.THANKAMMA,
AGED 57 YEARS, PANAYIL VEEDU, PANIMOOLA
EDATHARA MURI, ANDOORKONAM VILLAGE.
BY ADVS.SRI.M.RAJAGOPALAN NAIR
SRI.G.BIJU
SRI.S.JAYAPRAKASH (MADAVOOR)
RESPONDENTS / JUDGMENT DEBTORS / DEFENDANTS :
-----------------------------------------------------------------------------------
1. PARUKUTTY AMMA, W/O.PRABHAKARAN NAIR,
PANAYIL VEEDU, PANIMOOLA, EDATHARA MURI
ANDOORKONAM VILLAGE.
2. PRADEEPAN @ BIJU, S/O.PRABHAKARAN NAIR,
PANAYIL VEEDU, PANIMOOLA, EDATHARA MURI
ANDOORKONAM VILLAGE.
3. PRABHAKARAN NAIR, S/O.RAMAN PILLAI,
PANAYIL VEEDU, PANIMOOLA, EDATHARA MURI
ANDOORKONAM VILLAGE.
R1 & R2 BY ADV. SRI.G.S.REGHUNATH
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-09-2012,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Mn
...2/-
CRP.No. 447 of 2009 ( )
APPENDIX
PETITIONER'S ANNEXURES :
ANNEXURE A1 : COPY OF THE DECREE IN O.S. NO. 96/1998.
ANNEXURE A2 : COPY OF THE RE-SURVEY PLAN ATTACHED TO DECREE IN O.S.
NO. 96/1998.
ANNEXURE A3 : COPY OF THE ORDER DATED 5.11.2005 IN I.A. 399/05 PASSED BY
SUB COURT, ATTINGAL.
ANNEXURE A4 : COPY OF THE EXECUTION PETITION NO. 29/2008 FILED BY THE
REVISION PETITIONER IN O.S. NO. 96/1998 BEFORE THE MUNSIFF'S
COURT, ATTINGAL.
ANNEXURE A5 : COPY OF THE COMMISSION APPLICATION (E.A. 181/08)
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
P.S. TO JUDGE
Mn
A. V. RAMAKRISHNA PILLAI, J.
---------------------------------------------
C.R.P.No.447 of 2009.
---------------------------------------------
Dated this the 19th day of September, 2012
ORDER
The petitioner/decree holder approached the Munsiff Court, Attingal, for a decree allowing him to construct a permanent boundary structure i.e., a compound wall with bricks and cement or barbed fencing with stone pillars and iron wire at a height of 4 = ft. from the ground along the boundary line separating the plaint schedule property and the property lying immediately on the western side of it which belongs to the respondent. The decree has attained finality.
2. The case of the petitioner is that though the decree directs putting a boundary wall on the western boundary of his property in accordance with the re-survey plan, which also form part of the decree, the execution court refused to depute a Commissioner finding that it is unnecessary to have another report from Advocate Commissioner. Thus, the revision petitioner has come up before this Court.
CRP.No.447/2009(D) -:2:-
3. Heard the learned counsel for both sides in detail.
4. It is not in dispute that the revision petitioner has obtained a decree for putting up a boundary structure on the western side of her property. It is strenuously argued by the learned counsel for the respondent that the decree is not executable, as the same was passed on the basis of a resurvey plan which has not become final. But, as the decree obtained by the petitioner has attained finality, there is no reason why the same shall not be executed. As the decree is for constructing a boundary structure on the western boundary of the petitioner's property separating the property of the respondent, it is quite necessary to have the assistance of an Advocate Commissioner to identify the boundary with the help of a plan where the proposed boundary structure has to be put up. See Prasannakumari C. v. C. Sudhakaran and Another (2012 (1) KHC 594) where it was held that if the decree can be executed by fixing the boundary after ascertaining the same as per a survey commission, the execution court is bound to execute the decree after following such a procedure.
CRP.No.447/2009(D) -:3:-
5. The execution court was not at all justified in refusing the prayer of the revision petitioner by the impugned order. The impugned order calls for an interference in exercise of the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure.
In the result, the revision petition is allowed. The impugned order in E.P.No.29/2008 in O.S.No.96/1998 on the file of the Munsiff Court, Attingal, is set aside. The execution court is directed to proceed with the execution petition filed by the petitioner in accordance with law.
Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE krj