CRP/476/2012 of DEVADAS Vs CHANDRAN on 31 December 2012

ORDER

The order dated 18.09.2012 in E.P.No.255 of 2011 in O.S.No.276of 1996 of the Additional Munsiff's Court, Alappuzha is under challenge in thiscivil revision at the instance of petitioner/1[st] judgment debtor.

2. Respondents/decree holders obtained a decree for prohibitoryinjunction restraining the petitioner and other judgment debtors from trespassinginto the plaint schedule property, identified by the Advocate Commissioner andmarked in Ext.C1(b), plan as ABCDEF plot. The decree also restrainpetitioner and other judgment debtors from causing obstruction to the decreeholders carrying out necessary repairs to the shed in the suit property.

3. Respondents filed E.P.No.255 of 2011 alleging that when they putup a fence on the AF line, that was obstructed by the petitioners and others andhence requested the executing court to depute an Amin with the assistance of aSurveyor for construction of fence or compound wall along the AF line and ifnecessary to order delivery of ABCDEF plot to the respondents.

5. That application was opposed by the petitioner on various groundsincluding that the decree does not provide for fence or compound wall,construction of fence or compound wall would affect right of access of thepetitioner and others and that the decree does not provide for delivery ofpossession of the property.

6. The executing court overruled the objections and passed theimpugned order. One Gopinatha Kurup, stated to be a private Surveyor wasappointed to survey the property and identify the same and execute the decreeas prayed for. The said order is under challenge.

7. Learned counsel for the petitioner has reiterated the contentionspetitioner and others advanced in the execution court.

8. In response it is contended by the learned counsel for therespondents that so far as the decree is for prohibitory injunction restraining thepetitioner and other judgment debtors from trespassing into the plaint scheduleproperty identified in Ext.C1(b), plan as ABCDEF plot, that recognizespossession of the respondent in the said plot and hence either by putting up afence or compound wall along the boundary the respondents are entitled toprotect their possession of the property. According to the learned counsel, aspecific provision in the decree for construction of fence or compound wall is notrequired.

9. So far as the prayer for ordering delivery of possession inE.P.No.255 of 2011 is concerned, it is argued by the learned counsel that ifsubsequent to the institution of the suit, petitioner or any other judgment debtorshave forcibly taken possession of a portion of the plaint schedule property, it iswell within the power of the executing court to grant delivery of possession sincethe change is effected after institution of the suit. The learned counsel hasreferred to Sec.52 of the Transfer of Property Act where it is stated that if duringthe pendency of the suit the property which is directly and specifically in questionis otherwise dealt with by any of the parties to the suit, such dealingswith theproperty would be subject to the result of the suit. Reliance is also placed on thedecisions in Narain Singh v. Imam Din and another (AIR 1934 Lahore 978)and Mohd. Ismail v. Ashiq Husain (AIR 1970 Allahabad 648).

Conclusion

10. Having heard the learned counsel on both sides and gone throughthe copy of decree, I am unable to accept the contention of the petitioner thatsince the decree does not specifically provide for putting up of fence orcompound wall it is not within the power of the executing court to permit so. Thereason is that the decree enables the respondents to protect their possession ofthe suit property, identified by the Advocate Commissioner in Ext.C1(b), plan asABCDEF plot. Such protection can be by putting up a fence or compound wall.It is idle for the petitioner to contend in the execution proceeding that he hasright of access through the property. That contention was required to be raisedin the suit. That was either not done or done but found against.

11. So far as delivery of possession is concerned, since the impugnedorder does not say so I do not find reason to go into that question. It is open tothe parties to contend on the sustainability of that relief in the execution petitionhaving regard to the facts and circumstances and the point of law involved.

12. Another objection raised by the petitioner is that though Ext.C1(b),plan was prepared by the Taluk Surveyor, a private Surveyor has now beenappointed. Having heard the learned counsel on both sides I am inclined tothink that the appropriate course is to appoint the Taluk Surveyor since Ext.C1(b), plan was prepared by the Taluk Surveyor.

13. Identification of the property has to be made by the Taluk Surveyorin accordance with Ext.C1(b), plan. To that extent above stated the impugnedorder is required to be modified.

Resultantly, the civil revision is allowed in part modifying the order dated18.09.2012 in E.P.No.255 of 2011 in O.S.No.276 of 1996 of the AdditionalMunsiff's Court, Alappuzha as under:

i.It is directed that instead of the Surveyor appointed by theexecuting court, it shall appoint the Taluk Surveyor to identify the suit property inaccordance with Ext.C1(b), plan.

ii.The contention raised by the petitioner that the respondentshave no right to put up fence or compound wall for protection of the plaintschedule property identified in Ext.C1(b) as ABCDEF is rejected.

iii.The question whether delivery of possession if any couldneed be ordered by the executing court is left open to be decided by that courtafter hearing both sides.

iv.The executing court shall pass appropriate ordersconcerning the reliefs prayed for in the execution petition and order execution ofthe decree in the presence of the Advocate Commissioner, assisted by the TalukSurveyor.

All pending interlocutory applications will stand dismissed.

THOMAS P.JOSEPH, Judge.

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