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2003 DIGILAW 128 (KER)

P. N. Kurian v. Thulasidas

2003-02-17

K.S.RADHAKRISHNAN

body2003
ORDER :- Decree-holder is the revision petitioner. Revision is filed against the order in E. A. No. 186 of 1998 in E. P. No. 131 of 1997 in O. S. No. 552 of 1992 on the file of the Munsiff's Court, Kottayam. 2. Suit was one for a declaration that item No. 2 is part of item No. 1 and it belongs to the plaintiff and also for a direction to remove the wall which has been put up by the defendant by trespassing into item No. 1. Suit was decreed ex parte. Decree holder filed E.P. No. 131 of 1997 and prayed for measuring out item No. 2 and for delivery of possession of the same to the decree holder with the help of a surveyor and commissioner and for removal of the wall at the defendants' cost and for other reliefs. In the execution petition, decree holder filed E. A. No. 186 of 1998 for appointment of a commissioner and surveyor for measuring and identifying item No. 2 and for other incidental reliefs. 3. Judgment debtor opposed the application on the plea that the same cannot be executed or a commission be issued since no plan is attached to the decree and that measurement and identification of item No. 2 cannot be granted at the execution stage. The Court below after considering the rival contentions held as follows : "After going through the decree I am of the opinion that the decree does not give power to this execution Court to identify plaint item No. 2 by issuing a commission to that effect. As stated in the objection, it should have been done at the trial side. The decree is an ex parte decree. As the decree is silent about the identification of property at this stage, I am not inclined to allow this application. Hence dismissed." 4. Counsel appearing for the decree holder however submitted that the Court below is not justified in dismissing the application. In support of the contention, counsel made reference to the decisions in Smt. Lalmuni Devi v. Shiv Shankar Tiwary, AIR 1980 Patna 184, Dr. Madhukar Trimbak Gore v. Vasant Ramkrishna Kolhatkar, AIR 1983 Bombay 277, Kassim Beevi v. Meeranchi Mytheen Beevi, AIR 1987 Kerala 226 and Chacko Geevarghese v. State of Kerala, AIR 1982 Kerala 333. 5. In support of the contention, counsel made reference to the decisions in Smt. Lalmuni Devi v. Shiv Shankar Tiwary, AIR 1980 Patna 184, Dr. Madhukar Trimbak Gore v. Vasant Ramkrishna Kolhatkar, AIR 1983 Bombay 277, Kassim Beevi v. Meeranchi Mytheen Beevi, AIR 1987 Kerala 226 and Chacko Geevarghese v. State of Kerala, AIR 1982 Kerala 333. 5. In Lalmuni Devi's case, supra, AIR 1980 Patna 184 Division Bench of the Patna High Court was considering the scope of Section 47 of the Code of Civil Procedure and also examined the meaning of the expression "such step". That was a case where the application was preferred for appointment of a commissioner to ascertain the identity of the property in terms of the decree. Contention was raised stating that the executing Court has no jurisdiction to take additional evidence to find out the properties in the suit. Repelling the contention the Court held that the executing Court is certainly entitled in law to take such steps to effect delivery of possession in terms of the decree under execution. It was also held "such steps" would not amount to taking any additional evidence in the matter but would amount simply to ascertain and fix up the identity of the property in terms of the decree itself. 6. In Madhukar Trimbak Gore's case, supra, AIR 1983 Bombay 277 the Court was examining the scope of order XXIII, Rule 3, C.P.C. That was a case where a compromise decree was sought to be executed. The executing Court held that decree was not executable on the ground that the terms of the compromise contained in the decree did not relate to the suit which was for permanent injunction and such a decree could not be made because of the provisions contained in Order XXIII, Rule 3. Further it was also held that the decree could not be executed for the reason that the house to which it related was not in existence. Reversing the decision of the executing Court, the High Court held that the executing Court could not go behind the decree. Further it was also held that the decree could not be executed for the reason that the house to which it related was not in existence. Reversing the decision of the executing Court, the High Court held that the executing Court could not go behind the decree. It was also held that when in execution a question arises as to the identity of the property of which possession has to be delivered to the decree holder, obviously such a question would relate to the execution of the decree and it would be for the executing Court to decide it as required by sub-section (1) of Section 47 of the Code. The Court held that the executing Court would do well to hold proper enquiry and determine the question with regard to the identity of the property which has to be delivered to the applicant. Similar is the view taken in Rahim Bux v. Moham-mad Shafi, AIR 1971 All 16. 7. In Chacko Geevarghese's case, supra AIR 1982 Kerala 333 learned judge was examining the question of executing arbitration award. The Court held that merely because in the execution of the decree, the executing Court has to ascertain the actual amount provided under the decree, it cannot refuse to execute such decree and ascertainment of the property in execution, where it is the subject matter of the decree in permissible. In Kassim Beevi's case, supra AIR 1987 Kerala 226 the Court after examining the question of execution of a decree for specific performance held that the executing Court is bound to carry out and implement its decree in accordance with its tenor which in turn would imply that the property should be correctly described with the proper boundaries. It is not as if by doing so the Court is traversing beyond the decree or causing any prejudice to any of the parties or conveying property not agreed to be conveyed. 8. I am of the view, principle laid down in the aforementioned decisions would squarely apply to the facts of the present case. In this case application was filed for taking out a commission to identify plaint item No. 2 and for other reliefs. In the light of the above, the impugned order is set aside and the revision petition is allowed. Petition allowed.