IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 30382 of 2006(P)
1. K.M. KESAVAN,
... Petitioner
Vs
1. MOOKAMBIKA AMMA,
... Respondent
2. K.M. NARAYANAN
3. SANTHA, W/O.LATE K.RAMBHATT,
4. SARASWATHY, W/O.P.M.NARAYANAN,
5. DEVAKI, W/O.LATE M.S.RAMAN EMBRANTHIRI,
6. K.M. JAYANTHY, W/O.M.VIJAYAN,
7. K.M. RATHNAVATHY, W/O.PADMANABHAN,
8. K.M. DEVAKEY,
For Petitioner :SRI.T.B.THANKAPPAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/11/2006
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C)NO.30382 OF 2006
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DATED THIS THE 27th DAY OF NOVEMBER, 2006
JUDGMENT
Petitioner is the decree holder. First respondent is the deceased
judgment debtor and respondents 2 to 8 are her legal heirs. As
Per Ext.P1 compromise, first respondent agreed to give 3 cents of
land from her properties on the western side through out the
north-south direction to petitioner, which is in continuation of
the property of his wife, who was the second defendant in the
suit. Accepting Ext.P1 compromise petition, a decree was passed
directing first respondent to execute a sale deed in respect of
the said three cents, agreed to be assigned, in favour of
petitioner within three weeks from the date of the decree. It was
also provided that on her failure, petitioner can get the sale
deed executed through Court. Petitioner filed E.P.281/01 before
Munsiff Court, Ernakulam for execution of the decree. A
commissioner was appointed and the commissioner demarcated the
property. Petitioner contended that the three cents agreed to be
assigned under the compromise decree has to be identified only
after identifying the plaint schedule property, which lies to the
west of the property of second defendant in the suit and as there
is some excess land, which belongs to his wife the second
defendant. According to petitioner plaint schedule property
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should be measured first and only thereafter the three cents
can be fixed. Judgment debtor contended that the property
agreed to be given to petitioner is the three cents, which
lies immediately to the west of the western boundary of the
property of the wife of petitioner. Commissioner prepared
two sketches in accordance with the contentions raised by
parties. Under sketch 1, plot B was shown as the three cents,
agreed to be given to the petitioner under the compromise
decree. The Commissioner has shown plot A as the property of
the wife of petitioner and plot C as the remaining property of
the judgment debtor and plot B as the three cents.
Commissioner under sketch II had shown the property of the
wife of petitioner as plot C, 3 cents as plot B and the
remaining property of judgment debtor as plot A. The executing
Court accepted the first sketch and held that what was agreed
by judgment debtor is to sell the three cents property which
lies immediately touching the western boundary of the property
of the wife of petitioner and therefore plot B marked therein
is the three cents which is agreed to be sold. The executing
Court under Ext.P4 order directed the judgment debtor to
surrender that property and to execute the sale deed in favour
of petitioner. Ext.P4 is challenged in this petition filed
under Article 227 of Constitution of India.
2. The argument of learned Counsel appearing for
petitioner is that what was agreed to under the compromise
deed is to sell three cents of property from the property of
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the judgment debtor,which is 12 cents and the executing Court
should have fixed that 12 cents and demarcated three cents
which lies on the eastern side of the said 12 cents and if so,
the executing Court should have relied on the sketch No.2
and Ext.P4 order is to be quashed.
3. On hearing learned counsel appearing for petitioner,
I do not find any infirmity in Ext.P4 order warranting
interference in exercise of the extraordinary jurisdiction of
this Court under Article 227 of Constitution of India.
4. What was agreed under Ext.P1 compromise was to give
three cents of the property belonging to judgment debtor to
the petitioner. That property, which was agreed to be sold is
the property, which lies immediately to the west of the
property of the wife of petitioner. The attempt of petitioner
is to get some more property under the guise that excess land
is available. Argument was that to fix the three cents plaint
schedule property having an extent of 12 cents should be fixed
and thereafter three cents should have been demarcated as
its eastern portion. Attempt is to get some more land, which
lies further to the east of the property now demarcated by
Commissioner and accepted by the Court below. But what was
agreed to be sold is only three cents, which lies immediately
to the west of the eastern boundary of the property of the
wife of the petitioner. Executing Court correctly fixed the
property of second defendant and thereafter fixed three cents,
which was agreed to be sold under Ext.P1 compromise.
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Therefore, I find no reason to interfere with that finding.
5. Learned Counsel appearing for petitioner then
submitted that as per Ext.P4 order, deceased judgment debtor
was directed to surrender and execute the sale deed and the
judgment debtor had died much earlier and respondents 2 to 8
were impleaded as his legal heirs. Ext.P4 order can only be
understood as a direction to respondents 2 to 8, the legal
heirs of judgment debtor to surrender and to execute the sale
deed. It is also made clear that executing Court has to
execute the sale deed in favour of petitioner if respondents 2
to 8 fail to execute the sale deed in respect of the said
three cents as demarcated by Commissioner and accepted by
Court below.
Petition disposed accordingly.
M.SASIDHARAN NAMBIAR,JUDGE
Acd
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