Kerala High Court
Treesa vs Banecious on 24 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
OP(C) NO. 476 OF 2020
AGAINST THE ORDER/JUDGMENTOS 1221/1999 OF PRINCIPAL MUNSIFF COURT ,
KOLLAM
PETITIONER/PLAINTIFF:
TREESA
AGED 69 YEARS
D/O. FERNANDEZ, KAYALTHOPPIL VEEDU, MEENATHU CHERRY,
SAKTHIKULANGARA VILLAGE, KOLLAM 691 581.
BY ADVS.
G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.GOVIND PADMANAABHAN
SHRI.AJIT G ANJARLEKAR
RESPONDENTS/1ST RESPONDENT AND ADDITIONAL DEFENDANTS 3 TO 7:
1 BANECIOUS
AGED 69 YEARS
S/O. PETER FERNANDEZ, KAYALTHOPPIL VEEDU, MEENATHU CHERRY,
SAKTHIKULANGARA VILLAGE, KOLLAM 691 581.
2 ANCHILA JOSEPH,
AGED 68 YEARS
W/O. JOSEPH, KAYALTHOPPIL VEEDU, MUKKADU,KAVANADU (P.O.),
SAKTHIKULANGARA VILLAGE, KOLLAM 691003.
3 OUSEPKUTY JOSEPH,
AGED 40 YEARS
S/O.JOSEPH, KAYALTHOPPIL VEEDU,MUKKADU, KAVANADU
(PO.),SAKTHIKULANGARA VILLAGE, KOLLAM 691 003
4 BRIJITH NEPOLEON,
AGED 47 YEARS
D/O. JOSEPH, PALLIPADINJATTATHIL, THIRUMULLAVARAM, KOLLAM
691 012.
5 PRASANNA JOY,
AGED 45 YEARS
D/O. JOSEPH, VALIYAKATTUVILA VEEDU (KAYAL VARAM),
THEKKUMBHAGOM (.P.O.), CHAVARA, KOLLAM 691 319.
6 MEERYKUTTY POULOSE,
AGED 42 YEARS
THEKKARUVATHU KAYAL VARATHU KIZHAKKATHIL, KUREEPUZHA,
PERINADU, KOLLAM 691 601.
BY ADV SRI.SAJU J PANICKER
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Sathish Ninan, J.
==============================
O.P.(C).No.476 of 2020
==========================
Dated this the 24th day of February, 2023
JUDGMENT
Petitioner is the decree holder. The decree is for
fixation of boundary. The decree was passed 30.07.2018.
As per the decree, the decree holder was permitted to
have the boundary fixed along "id" line shown in Ext
C7(b) plan attached to the decree.
2. Seeking execution of the decree the decree
holder filed E.P.No.47 of 2019. The judgment debtor
filed E.A.No.453 of 2019 contending that the boundary
cannot be fixed through "id line" in Ext.C7(b) plan for
two grounds; firstly, they have acquired title by
adverse possession over a portion of the decree
holder's property, and secondly, that a portion of
building of the judgment debtor is situated extending
beyond the "id" line mentioned in Ext.C7(b) plan.
Without a decree for mandatory injunction and
recovery of possession, the decree, as it stands could
O.P.(C).No.476 of 2020
not be executed.
3. The Court, as per Ext.P5(a) order dated
19.12.2019, allowed the execution application since the
Amin reported that in order to fix the boundary line as
per the decree, a portion of the building belonging to
the judgment debtor No.2 needs to be demolished. The
Court held that such act is beyond the scope of the
decree. Consequently, the execution petition was also
dismissed holding that the decree is not executable. It
is challenging the above orders that the decree holder
has approached this Court.
4. Heard the learned counsel on both sides.
5. The execution Court was right in its view that
an execution court cannot go beyond the decree. It has
to execute the decree as it stands. In terms of Section
47 of the Code of Civil Procedure, matters relating to
execution, discharge and satisfaction of a decree fall
within the scope of execution proceedings.
6. The plea of the judgment debtors that the
O.P.(C).No.476 of 2020
decree is inexecutable since they have acquired title
by adverse possession cannot obviously stand on the
face of the decree.
7. Coming to the second objection, the Amin
reported regarding existence of a portion of the
building at the "id" line in Ext.C7(b) plan through
which the boundary is to be put up. As contended by the
judgment debtor, there is no decree for mandatory
injunction. The learned counsel for the judgment debtor
took me through the Commissioner's report dated
18.07.2017, wherein the Commissioner has mentioned
about the existence of building at the "id" line in
Ext.C7(b) plan. If there exists any building on the
"id" line, the same cannot be demolished in execution
of the present decree. The Execution Court was, to
said extent, right in holing so.
8. However, it is to be noticed that, the said
building portion does not extend all through the "id"
line. The Execution Court is bound to have the decree
O.P.(C).No.476 of 2020
executed to the extend possible by fixing the line
through the "id" line without demolishing the building.
The execution petition could not have been dismissed.
Resultanlty, the Original Petition is allowed.
Order dated 19.12.2019 in E.A.No.453 of 2019 and
E.P.No.47 of 2019 (Exts.P5(a) and P8) will stand set
aside. The Execution Court shall proceed with the
execution in the manner as indicated supra, taking it
to its logical conclusion.
Sd/-
Sathish Ninan, Judge
Raj.
23.02.2023.
O.P.(C).No.476 of 2020
APPENDIX OF OP(C) 476/2020
PETITIONER EXHIBITS
EXHIBIT P5(a) A true copy of the Order dated
19.12.2019 passed by the principle
Munsiff Court, Kollam in E.A. No. 453 of
2019.
EXHIBIT P2 A TRUE COPY OF THE EXECUTION PETITION
E.P. NO. 47 OF 2019 IN O.S. NO. 1221 OF
1999 FILED BY THE PETITIONER BEFORE THE
PRINCIPAL MUNSIFF COURT, KOLLAM, DATED
14.02.2019.
EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENTS TO E.P. NO. 47 OF 2019
IN O.S. NO. 1221 OF 1999 BEFORE THE
PRINCIPAL MUNSIFF COURT, KOLLAM.
EXHIBIT P4 A TRUE COPY OF THE PETITION E.A. NO. 453
OF 2019 IN E.P. NO. 47 OF 2019 IN O.S.
NO. 1221 OF 1999 FILED BY THE THIRD
RESPONDENT BEFORE THE PRINCIPAL MUNSIFF
COURT, KOLLAM, DATED 04.07.2019.
EXHIBIT P1 A TRUE COPY OF THE DECREE ALONG WITH THE
PLAN APPENDED IN O.S. NO. 1221 OF 1999
OF THE PRINCIPAL MUNSIFF COURT, KOLLAM,
DATED 30.07.2018.
EXHIBIT P6 A TRUE COPY OF THE PETITION E.A. NO. 468
OF 2019 IN E.P. NO. 47 OF 2019 IN O.S.
NO. 1221 OF 1999 FILED BY THE PETITIONER
BEFORE THE PRINCIPAL MUNSIFF COURT,
KOLLAM, DATED 12.11.2019.
EXHIBIT P7 A TRUE COPY OF THE OBJECTION FILED BY
THE RESPONDENTS TO E.A. NO. 468 OF 2019
IN E.P. NO. 47 OF 2019 IN O.S. NO. 1221
OF 1999 BEFORE THE PRINCIPAL MUNSIFF
COURT, KOLLAM.
EXHIBIT P8 A TRUE COPY OF THE ORDER DATED
19.12.2019 IN E.P. NO. 47 OF 2019 IN
O.S. NO. 1221 OF 1999 OF THE PRINCIPAL
MUNSIFF COURT, KOLLAM.
EXHIBIT P5 A TRUE COPY OF THE OBJECTION FIELD BY
O.P.(C).No.476 of 2020
THE PETITIONER TO E.A. NO. 453 OF 2019
IN E.P. NO. 47 OF 209 IN O.S. NO. 1221
OF 1999 BEFORE THE PRINCIPAL MUNSIFF
COURT, KOLLAM DATED 12.11.2019.
Ext.P5(a) A true copy of the order dated
19.12.2019 passed by the Principle
Munisiff Court, Kollamin E.A.No.453 of
