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MADHAVAN, S/O.CHAMI versus VELAN, S/O.PARANGODAN

High Court of Kerala

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MADHAVAN, S/O.CHAMI v. VELAN, S/O.PARANGODAN - WP(C) No. 34994 of 2005(N) [2007] RD-KL 13133 (16 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 34994 of 2005(N)

1. MADHAVAN, S/O.CHAMI,
... Petitioner

Vs

1. VELAN, S/O.PARANGODAN,
... Respondent

2. SIVARAMAN, S/O.CHAMI,

3. GOPALAN, S/O.CHAMI,

For Petitioner :SRI.P.R.VENKATESH.

For Respondent :SRI.VINOD KUMAR.C

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :16/07/2007

O R D E R

PIUS C.KURIAKOSE,J


================
W.P.(C).No.34994 OF 2005
=================

Dated this the 16th day of July,2007



JUDGMENT

The grievance of the petitioner who was the judgment debtor in a suit for fixation of the boundary is that in respect of Ext.P4 report of the Advocate Commissioner which will show that the boundary has not been put up on the line AC boundary as per decree, the learned Munsiff has passed Ext.P5 turning down his request for remittance on the reason that the decree holder is satisfied with what has been done by the Amin. The court below has also stated that the petitioner has not filed any application for undoing the act of the Amin in carrying out the decree. I find that Ext.P4 Commissioner's report is obtained on a request made by the judgment debtor that the boundary has been presently put up not in terms of the decree, but departing from the correct line AC. The boundary is put up on BC line which according to the petitioner has resulted in a portion of the petitioners property being annexed to that of the respondents. Learned counsel for the respondents would submit that Ext.P4 W.P.(C).No.34994/2005 Commissioner's report, was filed on 19.11.2005 and on the very next posting date, the learned Munsiff passed Ext.P5, as a result of which the respondents were deprived of an opportunity to file objection to Ext.P4. Counsel invited my attention to Ext.P1. Ext.P1 is the Commissioner's earlier report.

2. Having considered the rival contention addressed at the Bar, I am of the view that the learned Munsiff is not justified in approving the action of the Amin, on the reason that the decree holder is satisfied with the same. The learned Munsiff should have seen that under the decree a counter claim which had been filed by the defendant-petitioner had also been upheld in part. What was expected to be done in terms of the decree was to put up a boundary exactly on AC line. Ext.P4 will indicate that the same has not been done.

3. Under these circumstances, I set aside Ext.P5 and direct the learned Munsiff to take a fresh decision on the Execution Petition. The learned Munsiff will allow reasonable time to the respondents to file objection against Ext.P4. Thereafter, the learned Munsiff will consider Ext.P4 and the W.P.(C).No.34994/2005 objections to be filed by the respondents, hear the parties and pass fresh orders. The learned Munsiff will ensure compliance of the above directions at the earliest and at any rate within two months of receiving copy of this judgment. The writ petition is disposed of as above.

PIUS C.KURIAKOSE,JUDGE

dvs


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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