IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1236 of 2005()
1. GEORGE, AGED 58,
... Petitioner
Vs
1. PEELI, S/O. KUNJOOTTY,
... Respondent
2. APPACHAN, S/O. KUNJOOTTY,
3. KUTTAYI, S/O. PAPPACHAN,
4. KUNJOOTTY, S/O. PATHROSE,
5. KRISHNANKUTTY,
6. POULOSE, S/O. CHACKO,
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent :SRI.ASOK M.CHERIAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/06/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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C.R.P. No. 1236 of 2005
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Dated this the 9th day of June, 2008
O R D E R
Petitioner is the plaintiff and respondebts the
defendants in O.S. 139 of 2001. Suit was for injunction.
Suit was settled and a compromise petition was passed.
Ext.A1, compromise petition, shows that as per terms of
the compromise plaintiff has to provide a way having a
width of 8 feet to the defendants and at the time of
construction of the road, including the portion where a
Thondu lies, at the expense of the defendants a compound
wall separating the road from the plaint schedule property
is to be constructed. Accepting Ext.A1 compromise
petition, Ext.A2 decree, under which Ext.A1 forms part of
the decree was passed. Contending that plaintiff did not
comply with the compromise decree, respondents filed EP
158 of 2004. Though petitioner appeared before the
Executing Court he did not file any written objection or
cross-examined the 5th decree holder and 5th petitioner in
the execution petition, who was examined as PW1.
Executing Court, therafter, passed an order on 6.12.2005
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appointing an Advocate Commissioner, under whose superviison
construction of the way having a width of 8 feet as provided in
the compromise decree was directed to be carried out.
Respondents were directed to pay Rs.1,000/- to the
commissioner as batta. It was provided that they are entitled to
realize the cost from the petitioner. The order is challenged in
this revision petition filed under Section 151 of Code of Civil
Procedure.
2. Learned counsel appearing for petitioner and
respondents were heard. Ext.A2 decree only provides that
respondents are entitled to use 8 feet width of way inclusive of
the Thondu portion, through the plaint schedule property and
they are entitled to construct a road through that way. It also
provide that at the time of construction of the road, they have to
construct a wall separating that road portion from the remaining
property of the petitioner. Though the Executing Court under
order dated 6.12.2005 appointed the commissioner to supervise
the construction of the way, there was no direction to construct a
compound wall separating the way from the remaining portion of
the decree schedule property as provided under the decree.
Therefore, to that extent the order passed by the Executing
Court warrants interference. Similarly, when the wall is to be
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constructed at the expense of the respondents and they did not
mention anything about it in the execution petition, Executing
Court was not justified in directing petitioner to pay the cost in
the execution petition to the respondents.
3. Revision is allowed in part, the order passed by the
Executing Court is modified as follows:-
The Advocate Commissioner is appointed at the
expense of the petitioners in the execution petition to
supervise the construction of the way having a width
of 8 feet as provided under the compromise decree
and also the construction of the compound wall
separating the way from the remaining portion of the
decree schedule property at the expense of the
petitioners in the execution petition. Respondent in
the execution petition (plaintiff) is not liable for the
cost in the execution petition.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-
CRP1236/05 4
ORDER IN I.A. 3544/2005 IN C.R.P.1236/2005
DISMISSED
Sd/-
M. SASIDHARAN NAMBIAR,
JUDGE
9TH JUNE, 2008.
//True Copy//
P.A. To Judge