Kerala High Court
Leelambika Devi vs Vijayan on 8 February, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY,THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938
OP(C).No. 1419 of 2016 (O)
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(E.A.NO.4/2016 IN E.P.NO.3/2015 IN OS.NO.391/2009 OF MUNSIFF COURT,
CHANGANACHERRY)
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PETITIONER:
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LEELAMBIKA DEVI,AGED 56 YEARS,
D/O DAMODARA KURUP,PORUVANKAVUMKAL HOUSE,
KARUKACHAL.P.O,CHAMPAKKARA MURI,
KARUKACHAL VILLAGE, CHANGANACHERRY TALUK,
PIN-686 540.
BY ADVS.SRI.SANIL JOSE
SRI.ANTONY BINU K P
RESPONDENT:
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VIJAYAN, AGED 36 YEARS,
S/O.KUTTAPPAN, ANJILITHOPPIL HOUSE,
KARUKACHAL.P.O, CHAMPAKKARA MURI,
KARUKACHAL VILLAGE,
CHANGANACHERRY TALUK, PIN-686 540.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION
ON 10-06-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
OP(C).No. 1419 of 2016 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE PHOTOCOPY OF THE EX-PARTE DECREE PASSED IN O.S.391/2009
DATED 8.2.2010, MUNSIFF COURT,CHANGANACHERRY.
P2 TRUE PHOTOCOPY OF THE EXECUTION PETITION IN E.P.3/2015 IN
OS.391/2009, MUNSIFF COURT,CHANGANACHERRY
P3 TRUE PHOTOCOPY OF THE OBJECTION IN E.P.3/2015 IN
O.S.391/2009, MUNSIFF COURT, CHANGANACHERRY
P4 TRUE PHOTOCOPY OF THE REPORT AND ROUGH SKETCH OF THE
ADVOCATE COMMISSIONER IN O.S.181/2015, MUNSIFF
COURT, CHANGANACHERRY DATED 20.5.2015
P5 TRUE PHOTOCOPY OF THE OBJECTION FILED AGAINST THE WRONG
EXECUTION OF THE DECREE IN E.P.3/2015 IN O.S.391/2009, MUNSIFF
COURT, CHANGANACHERRY
P6 TRUE PHOTOCOPY OF THE COMMISSION APPLICATION EA 4/2016 DATED
16.1.2016 FILED IN E.P.3/2015 IN O.S.391/2009,MUNSIFF COURT,
CHANGANACHERRY
P7 CERTIFIED COPY OF THE ORDER DATED 5/4/2016 IN .E.A.4/2016 IN
E.P.3/2015 IN O.S.391/2009, MUNSIFF COURT, CHANGANACHERRY.
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.A.TO JUDGE
sts
K. HARILAL, J.
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O.P.(C) No.1419 of 2016
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Dated this the 10th day of June, 2016
JUDGMENT
The Petitioner is the defendant in O.S.No.391/2009 on the files of Munsiff Court, Changanacherry as well as the judgment debtor in E.P.No.3/2015 in the above original suit. The suit was one for declaration of an easement right of way by grant over the plaint item No.3 pathway and for mandatory injunction. The suit was decreed exparte and has attained a finality, in the absence of challenge against the exparte decree. Thereafter, the respondents filed the above E.P. seeking execution of the decree by the process of the court. The petitioner herein filed an objection contending that the description of the plaint item No.3 pathway is not correct and it is not identifiable and hence the decree is unexecutable. That apart, the petitioner filed an application to appoint a Commission to establish their O.P.(C) No.1419 of 2016 2 contention that the decree was not executed in terms of the decree.
2. The respondent resisted the said application contending that the execution court cannot go behind the decree and contentions raised by the petitioners could have been raised in the original suit and the petitioner failed to defend the suit and thereby the decree has attained a finality and no attempt was made to challenge the exparte decree.
3. After considering the objections, the court below dismissed the application seeking appointment of a Commission. The legality and propriety of the reasoning, whereby the court below dismissed the said application, are under challenge in this O.P.(C).
4. Heard the learned counsel for the petitioner.
5. The short point that arises for consideration is, whether there is any illegality or impropriety in the findings, whereby the court below dismissed the application seeking appointment of a Commission. Going by impugned order, it could be seen that the court below O.P.(C) No.1419 of 2016 3 dismissed the application on the ground that, the matters sought to be ascertained by the Commission goes behind the decree. The execution court has no jurisdiction or power to go behind the decree and the prayer in the application goes beyond the scope and extent of jurisdiction contemplated under Section 47 of the C.P.C. Ext.P5 is the objection filed by the petitioner and Ext.P6 is the Commission application. In Ext.P5, the petitioner contended that the execution of the decree is impracticable. It means that, execution is not capable of being performed.
6. According to the petitioner, there is no such way as claimed by the petitioner, so the execution of the decree is impracticable. If the relief sought for was impracticable or there was no such way as contended by the petitioner, certainly the petitioner should have raised the said contentions in the original suit and contested the case on merit after setting aside the exparte decree. But admittedly, no attempt was made to set aside the exparte decree. As rightly pointed out by the court below, the O.P.(C) No.1419 of 2016 4 scope and extent of jurisdiction under Section 47 of the C.P.C. is confined to execution, discharge or satisfaction of the decree only. The impracticability of execution does not fall within the scope and extent of jurisdiction under Section 47 of the C.P.C. This court is of the view that, no decree can be left unexecuted on impracticability raised by the judgment debtor in the execution petiton.
7. Coming to the Commission application, the petitioner has no case that the execution was made in violation of the decree. On the other hand the Amin reported that the decree has been executed as per the terms of the decree. The matters sought to be ascertained by the Commissioner, in the application shows that even after the execution of the decree, the petitioner is challenging the existence of the way, for which the decree was granted. In short, no purpose will be served by appointing a Commission as the matters sought to be ascertained are intended to show that there was no such way, and such a plea is unsustainable after execution of a decree, and such an enquiry is O.P.(C) No.1419 of 2016 5 impermissible in an execution petition.
In the above view of the matter, I find that there is no illegality or impropriety in the impugned order and this O.P.(C) is dismissed accordingly.
Sd/-
K. HARILAL
STK JUDGE
//TRUE COPY//
//P.A. TO JUDGE//