Kerala High Court
Abdulrahiman vs Parameshwari Amma on 11 April, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 19TH DAY OF NOVEMBER 2012/28TH KARTHIKA 1934
C.R.P.No.1177 of 2003
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[AGAINST THE ORDER IN E.P.NO.303 OF 1990 IN O.S.NO.211 OF 1986 DATED
11.4.2003, OF THE COURT OF THE PRINCIPAL MUNSIFF, KASARAGOD.]
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REVISION PETITIONER/JUDBMENT DEBTOR IN E.P.:-
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ABDULRAHIMAN, S/O.ABDULKHADER BEARY,
RESIDING IN PUTHRUKALA, KAMBADJE VILLAGE,
KASARAGOD TALUK, P.O.YETHADKA.
BY ADVS. SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE)
SRI.P.B.KRISHNAN.
RESPONDENTS/DECREE HOLDERS:-
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1. PARAMESHWARI AMMA,
WIDOW OF NARAYANA BHAT,
RESIDING IN PUTHRUKALA, KUMBADJE VILLAGE,
KASARAGOD TALUK, P.O.YETHADKA.
2. SUBRAHMANYA BHAT, S/O. DO. IN DO.
3. PARAMESHWARI, D/O. DO. IN DO. DO.
4. RAVI, Y., S/O. DO. IN DO. DO.
5. SAVITHA, D/O. DO. IN DO. DO.
6. SHYAMA, Y., D/O. DO. IN DO. DO.
(RESPONDENTS 1 AND 3 TO 6 ARE REPRESENTED BY
POWER-OF-ATTORNEY HOLDER, RESPONDENT NO.2).
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
19-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:-
K. Vinod Chandran, J
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C.R.P.No.1177 of 2003
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Dated this the 19th day of November, 2012
ORDER
The above Civil Revision Petition is filed by the judgment debtor before the execution Court.
2. The suit was one for mandatory injunction to remove obstructions on a road. The suit was decreed, granting the injunction and directing removal of the obstruction on a reference to the eye-sketch produced along with the plaint. On attempting to remove such obstructions, the Amin reported that the property is not identifiable with reference to the eye sketch. In such circumstance, the execution Court directed that the property shall be identified as per Exhibit C2 sketch. This was challenged by the judgment debtor before this Court by way of C.R.P.No.571 of 1998. This Court, relying on the decision in Topanmal Chhotamal v. M/s.Kundomal Gangaram and others, AIR 1960 S.C. 388, held that the executing Court can construe a decree, if there is any ambiguity, by looking into the pleadings and the judgment. Here was a case where the Amin reported that the identification of the property was impossible on a reference to the eye C.R.P.No.1177 of 2003
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sketch. In such circumstances, it was the order of the execution Court directing identification of the property on a reference to the Commissioner's report and plan, Exhibits C1 and C2. That was upheld by this Court. However, this Court was of the opinion that it is only appropriate, in the facts and circumstances of the case, that the execution Court first gets the report of the Amin regarding the identification of the property and permit parties to file their objections before removal of the obstructions are ordered by the Court. With the above modification, the matter was sent back.
3. Before the Court below, there was a contention raised that the obstructions were already removed under the Land Conservancy Act and it was also pleaded that the records of the Land Conservancy Case would amply demonstrate such removal of obstructions. With respect to the question of calling for certain records, the decree holders were before this Court in two revisions, C.R.P.Nos.1089 of 1999 and 1126 of 1999. This Court again remanded the matter, directing that the parties would be free to lead evidence on any aspect, including the removal of obstruction under the Land Conservancy Act; but set aside the orders of the Court below summoning certain documents from the office of the Tahsildar (L.A.), Kumbla and the Judicial First Class Magistrate's Court, Kasaragod. C.R.P.No.1177 of 2003
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4. On remand, the Amin and the Nazir of the execution Court were examined as C.W.1 and C.W.2. Though they affirmed that the identification of the property was made as per the Commission Report and plan, it was submitted before Court that what they had done was that directed by the High Court in C.R.P.No.571 of 1998. This was contrary to the report filed by the Amin before the Court that the decree itself was executed.
5. The judgment debtor again filed C.R.P.No.2149 of 2001 against the denial of opportunity to examine witnesses. It was the judgment debtor's contention that since the decree holders did not adduce any oral evidence, he too made an endorsement to that effect. But subsequently the Court examined two witnesses, suo motu, and hence he should be granted a further opportunity. That was allowed by this Court. There was a further remand, and the order passed thereon is impugned herein.
6. The execution Court, after considering the entire issue, passed the impugned order directing removal of obstructions of the road in tune with the decree and directed execution of the decree.
7. The objection of the judgment debtor, who is the revision petitioner, is two fold. The Amin's inspection to identify the property in C.R.P.No.1177 of 2003
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accordance with the Commissioner's report and plan, it is contended, was without notice to the judgment debtor. As a matter of practise, the Amin deputed to execute a decree does not carry out the execution with notice to the judgment debtor. In the instant case, there is a departure, in so far as that, it was not the execution of the decree, but the identification of the property itself, which was embarked upon by the Amin. This Court is of the opinion that when Exhibit C2 sketch was on record, nothing turns on the identification of the property with reference to Exhibit C2 sketch by the Amin. In any event, it has been submitted before Court that the decree as such was not executed and what was done was a mere identification. The lack of notice causes no prejudice to the judgment debtor. The objections of the judgment debtor were elaborately considered by the Court below. The identification of the property has been found to be proper and this Court is of the opinion, that, that part of the order is not liable to be interfered with.
8. The next objection is on the premise that whatever obstruction was in existence is now removed and the only attempt, in the guise of execution of decree, is to cause further injury to the judgment debtor. It is seen that the documents relating to the land conservancy proceedings were produced before the Court below and after perusing C.R.P.No.1177 of 2003
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the records, the Court below has passed an order to execute the decree. In any event, if the obstructions have already been removed, there is no scope for any further execution of the decree. The apprehension expressed by the judgment debtor can be set at ease by deputing a Commissioner Advocate to accompany the Amin, while executing the decree.
9. In the above circumstances, the order of the Court below is affirmed, however, with a rider that if the judgment debtor files an application for deputing a Commissioner Advocate in the proceedings for execution of the decree, the same shall be considered in accordance with law.
With the above modification, the Civil Revision Petition is disposed of, upholding the orders of the Court below.
Sd/-
K. Vinod Chandran, Judge vku/-
( true copy )