IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3747 of 2007(U)
1. KUTTAN KURUP SREEDHARA PILLAI,
... Petitioner
2. KUTTAN KURUP SURENDRAN PILLAI OF
Vs
1. BHAGEERTHY AMMA SARASWATHY AMMA,
... Respondent
2. SARASWATHY AMMA LEELAMMA OF -DO- -DO-.
3. SARASWATHY AMMA SOBHANA OF -DO- -DO-.
4. S. VIMALAMMA OF -DO- -DO-.
5. S. VIJAYAN NAIR OF -DO- -DO-.
6. S. SASIDHARAN NAIR OF -DO- -DO-.
7. S. MOHANAN NAIR OF -DO- -DO-.
8. BHAVANI AMMA OMANA AMMA OF -DO- -DO-.
9. KUTTAN KURUP KRISHNANKUTTY NAIR OF
For Petitioner :SRI.K.B.PRADEEP
For Respondent :SRI.K.S.MANU (PUNUKKONNOOR)
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :22/01/2009
O R D E R
K.P. Balachandran, J.
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W.P.(C)No.3747 of 2007 U
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JUDGMENT
Counsel for the petitioners/decree holders
submits that in execution of the decree in O.S.No.
406/92 on the file of the Munsiff’s Court,
Nedumangadu vide E.P.No.1/95, a boundary wall was
put up; that the respondents/judgment debtors
raised an objection that the said boundary wall was
not put up along the I-J line shown in the plan
(Exhibit C1(a) appended to the decree; that
thereupon the execution court, on E.A.No.265/05
filed by the petitioners/decree holders, deputed
Advocate Sri.B.Ramesan Nair as the Commissioner to
visit the property and submit a report and plan
with the assistance of Sri.B.Sadasivan, a retired
Surveyor; that accordingly, the Commissioner
visited the property and submitted Exhibit P5
report and plan to the effect that boundary wall
was put up in execution, but not on the I-J line;
that petitioners/decree holders filed Exhibit P6
WPC 3747/07 2
objection to Exhibit P5 commission report and plan
and filed Exhibit P7 application requesting for
boundary being put up along the I-J line shown in
Exhibit C1(a) plan appended to the decree in the
suit, as the boundary wall put up had already been
demolished; that again, Advocate Sri.Ramesan Nair
was appointed as the Commissioner vide Exhibit P7
(a) order to help the Amin to put up the boundary
with the help of Sri.Ravikumar, a retired Surveyor;
that on their inspection, it was found that the
boundary wall which had been put up earlier was
precisely on the I-J line and Exhibit P5 report and
plan submitted by them reporting that the boundary
is not put up along the I-J line was wrong, but,
instead of rectifying the wrong report and plan,
the Commissioner was insisting the petitioners/
decree holders to settle the matter with the
respondents/judgment debtors and did not file any
fresh commission report till now before the
execution court and that the execution court also
WPC 3747/07 3
is not taking any steps to make any progress to
have the decree in the suit satisfied and has even
rejected E.A.No.434/06, filed to change the
Commissioner and Surveyor, vide Exhibit P9 order.
2. Despite service of notice on the judgment
debtors, who are respondents 1 to 7 herein, they
have not entered appearance before this Court and
have not engaged any Lawyer till this date.
3. In the circumstances, I direct the court
below, namely, the Munsiff, Nedumangadu, to see to
it that the decree in O.S.No.406/92, sought to be
got executed by the petitioners/decree holders
filing E.P.No.1/95, is executed expeditiously and
the boundary put up as prayed for in the execution
petition in compliance with Exhibit C1(a) plan
appended to the decree by deputing an Amin, with
the assistance of Advocate Commissioner Sri.Ramesan
Nair and retired Surveyor Sri.Ravikumar, appointed
vide Exhibit P7(a) order dated 8.11.2006 on
E.A.No.363/06. The court below shall also probe
WPC 3747/07 4
into the question as to why the Amin deputed to put
up the boundary as per the aforesaid order dated
8.11.2006 has not put up the boundary and submitted
the report and as to why the Commissioner also did
not submit any report and as to whether the
Commissioner and the Surveyor have withdrawn the
bata deposited pursuant to the order dated
8.11.2006. Counsel for the petitioners/decree
holders expresses doubt as to whether the
Commissioner will co-operate, as instead of
assisting the Amin to execute the decree, he was
persuading the parties to arrive at a settlement,
as he happened to file a report probably on having
been mislead by the Surveyor reporting that the
boundary put up was not on the I-J line shown in
Exhibit C1(a) plan appended to the decree. In the
event of the Commissioner Sri.Ramesan Nair
expressing any difficulty in executing the decree,
the court below shall be at liberty to appoint
another competent Commissioner to execute the work
WPC 3747/07 5
of assisting the Amin in putting up the boundary
assisted by a competent retired Surveyor and in
that event if at all the earlier Commissioner and
the retired Surveyor appointed vide Exhibit P7(a)
order, had already received the bata, they shall
be caused to re-deposit the amount in court.
However, executing the decree by deputing another
Commissioner and retired Surveyor need not await
re-deposit of the bata if any received by the
earlier Commissioner and retired Surveyor and the
petitioners/decree holders shall deposit the
required bata that may be ordered by the execution
court to expedite the execution. To that extent,
Exhibit P9 order shall stand set aside.
The writ petition is disposed of with the above
directions.
22nd January, 2009 (K.P.Balachandran, Judge)
tkv