K M RAVEENDRAN Vs. TINU D PARAI

JUDGEMENT

(1.) Respondent got a decree for specific performance of an agreement for sale against petitioner, in O.S. No.224 of 1995 of the court of learned Sub Judge, Ernakulam and that decree was put to execution in E.P. No.313 of 2004. It is not disputed that a portion of the decree schedule property has already been delivered to the respondent-decree holder. But since the service of Surveyor was not available at that time remaining portion was left not delivered. In respect of that portion respondent filed E.A. No.1239 of 2006 seeking delivery. In that application Advocate Commissioner again inspected the property with the assistance of Taluk Surveyor and prepared a plan (marked as Annexure-B in this proceeding). Amin went to the spot to effect delivery and there was some obstruction. That matter was reported to the court. Petitioner-judgment debtor No.1 filed E.A. No.677 of 2010 raising objection to the execution of the remaining portion of the decree schedule property contending in short that eastern boundary of property to be delivered over is not shown in Annexure-B and it must go further east going by the description of boundary of property in the decree schedule and to properly identify the property it is necessary to appoint an Advocate Commissioner. That application was opposed by the respondent. Learned Sub Judge has referred to various attempts made by respondent to execute the decree, objection raised by petitioner and found that there is no merit in the objection. Accordingly E.A.No.677 of 2010 was dismissed. That order is under challenge in this revision at the instance of petitioner-judgment debtor No.1. Learned counsel for petitioner contends that even as per the decree schedule eastern boundary of the property is described as that of Prasad but as per the description at spot eastern boundary of the property is not that of Prasad. According to the learned counsel six metres width plot has to be measured from the rubble foundation found towards east of the decree schedule property and if measured from that spot it will not cover any portion of the building of petitioner. Hence it is necessary to appoint an Advocate Commissioner with the assistance of a Taluk Surveyor. Learned counsel for respondent contended that Annexure-B, plan was obtained in execution and it tallied with Ext.C1(a), plan prepared by a competent Surveyor in the course of trial where the eastern boundary has been identified correctly by the Surveyors and hence appointment of a further commission or Surveyor is not warranted. It is also contended that attempt of petitioner is to capitalise from an exchange of a portion of property between petitioner and another person towards the north eastern portion of the decree schedule property and accordingly the present contention is raised.

(2.) I have gone through Exts.C1(a) and Annexure-B, plans obtained from competent Surveyors on the trial and execution sides. In the decree schedule width of the disputed portion is stated to be six metres. It is not disputed that except that portion rest of the decree schedule property has already been delivered over to the respondent. Now the dispute centres round northern boundary of decree schedule property. It is seen from Ext.C1(a), plan obtained on the trial side and Annexure-B, plan obtained on execution side that eastern boundary was identified with the assistance of survey stone on the extreme north and theodolite stone on the extreme south. The eastern boundary line also has been fixed. So there can be no dispute regarding eastern boundary of the decree schedule property as seen from Annexure- B, plan. If that be so contention of petitioner that the measurement of six metres has to be taken from further east of the eastern boundary cannot be accepted. In that situation there is no necessity for any further identification of the property. What is required is only to direct that execution shall be in accordance with Annexure-B, plan.

(3.) Resultantly, this Writ Petition is dismissed. It is directed that executing court shall order delivery of the property strictly in accordance with Annexure-B, plan with the boundaries shown therein.