IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 179 of 2010()
1. JOY, S/O.MICHAEL,
... Petitioner
Vs
1. ROSAKUTTY, W/O.DEVASIA,
... Respondent
2. P.M.DEVASIA, PADINJARAYIL HOUSE,
3. AUGUSTINE ABRAHAM,
4. MANI DEVASIA, PANATHANATHU HOUSE,
For Petitioner :SRI.SUNIL CYRIAC
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :26/03/2010
O R D E R
P.BHAVADASAN, J.
—————————————-
CRP Nos.179 & 180 of 2010
—————————————-
Dated 26th March 2010
Order
Since common issues are raised in both these
CRPs, they are heard together and disposed of by this
common order.
2. The petitioner is the judgment debtor in two suits
i.e., OS Nos.93/1993 and 151/1993. The decrees were put in
execution. The petitioner raised an objection stating that the
decrees are not executable. The main contention taken was
that the lie of the properties has not been properly shown in the
plan appended to the decrees and therefore, the decrees
cannot be enforced without making necessary corrections
therein. The Court below too noticed that there is substance in
the contention raised by the judgment debtor. However, the
Executing Court noticed that very same contentions were
raised at the trial as well as the appellate stage. Therefore, the
contentions raised by the petitioner were overruled and the
Court below decided to proceed with the execution. It is also
CRP NOS.179 & 180/10 2
stated in the order that even if the properties are not identifiable
due to a mistake in the direction, the executing court can
decide such question and identify the property by invoking the
power under S.47 CPC. It is against the order passed in EP
Nos.29 and 30 of 2009, that these CRPs are filed.
3. The learned counsel for the petitioner pointed out
that even going by the impugned order, the executing court has
found that there is a mistake in the decree and plan. If that be
so, according to the learned counsel for the petitioner, it is not
possible to execute the decrees and they are unenforceable. It
is also pointed out that the decrees have to be got corrected in
terms of the lie of the property and thereafter only, execution
can be levied. It is also submitted that at any rate, the
observation of the Court below that it can identify the property
under S.47 CPC is premature.
4. There is some substance in the contentions
raised by the petitioner. The executing court found that there is
a mistake in the decree and plan. But, unfortunately for the
petitioner, very same contentions were taken out at the trial as
well as the appellate stage and his contentions were overruled
CRP NOS.179 & 180/10 3
and the decree was passed, which was confirmed by the
Appellate Court. It was the said decree that was put in
execution. It is not for the executing court to go behind the
pleadings and ascertain the facts. It is well recognised that for
construing a decree, the executing court can look into the
pleadings and documents and can also determine the identity
of the property. Those are matters to be decided at the
appropriate stage. If the petitioner is aggrieved by the order that
may be passed hereafter, he will be at liberty to assail the said
order before the appropriate forum, raising all his objections.
Reserving the liberty of the petitioner to do so, these Revision
Petitions are dismissed.
P.BHAVADASAN, JUDGE
sta
CRP NOS.179 & 180/10 4