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PAYYARATH ILLATH SHYLAJA versus T.V.JANAKI, D/O. APPA

High Court of Kerala

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PAYYARATH ILLATH SHYLAJA v. T.V.JANAKI, D/O. APPA - WP(C) No. 17482 of 2006(F) [2007] RD-KL 405 (5 January 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 17482 of 2006(F)

1. PAYYARATH ILLATH SHYLAJA,
... Petitioner

Vs

1. T.V.JANAKI, D/O. APPA,
... Respondent

For Petitioner :SRI.ABRAHAM GEORGE JACOB

For Respondent :SRI.K.RAMAKUMAR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :05/01/2007

O R D E R

M.Sasidharan Nambiar,J.

W.P.(C) No.17482 of 2006

Dated, this the 5

th day of January, 2007

JUDGMENT

Petitioner is the judgment debtor and respondent decree holder. A decree for injunction was passed against petitioner. Respondent filed E.P.179/03 under Order XXI Rule 35 of Code of Civil procedure alleging wilful violation of the decree for injunction. Petitioner disputed the identity and alleged violation of the decree. A Commission was appointed. The Commissioner originally submitted an interim report and thereafter a final report. Decree holder filed E.A.120/06 and E.A.134/06 applications to condone the delay and to remit the report back to the Commissioner. It was objected to by petitioner. Under Ext.P5 order, learned Munsiff allowed the applications and remitted the report back to the Commissioner which is challenged in this petition filed under 2 Article 227 of the Constitution of India.

2. Learned counsel appearing for petitioner and respondent were heard.

3. The argument of learned counsel appearing for petitioner was that neither the decree nor the agreement show the side measurements and respondent wanted the property to be identified with reference to side measurements furnished by the respondent, which is unauthorized and in such circumstance, the learned Munsiff should not have remitted the report to file a report after measuring the properties on the basis of the side measurements. Learned counsel appearing for the respondent submitted that petitioner wanted the decree schedule property to be identified with the assistance of the Surveyor as the Commissioner reported that side measurements are not available, court has only directed Commissioner to identify the property with reference to side measurements and that too with the assistance of the village Assistant and in such circumstance, no interference is called for.

4. Under Ext.P5 order, learned Munsiff has not stated that the decree schedule property has to be fixed with reference to the side measurements furnished by the respondent. Ext.P5 order makes it clear that as the decree holder requested that property is to be identified with reference to the side measurements, Commissioner could be directed to file a report after identifying the property with reference to the side measurements also. That does not mean that the report will be accepted. By filing a report no prejudice will be caused to any of the parties. It is for the executing court to decide which exactly is the decree schedule property. Writ Petition is dismissed. M.SASIDHARAN NAMBIAR

JUDGE

4 Tpl/-


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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