SUKUMARA PANICKER Vs. SREEDHARAN NAIR

JUDGEMENT

(1.) This petition is in challenge of Ext.P5, order dated August 20, 2010 on E.A.No.35 of 2010 in E.P.No.65 of 2009 in O.S.No.257 of 2003 of the court of learned Munsiff, Kanjirappally. Petitioners/decree holders have a decree in their favour declaring their right of easement by way of grant through plaint schedule item No.5 and a mandatory injunction directing respondent to remove the obstruction. Petitioners were also permitted to reconstruct a 'chappath' across the thodu with permission of the local authority concerned. Petitioners filed E.P.No.65 of 2009 seeking enforcement of the decree for mandatory injunction and permit petitioners to construct a bridge instead of 'chappath' claiming that as per Ext.A4, marked in the executing court, the local authority has permitted petitioners to construct a bridge instead of 'chappath'. Respondents resisted execution petition to the extent it concerned the prayer for construction of bridge instead of 'chappath' claiming that it is a matter falling outside the scope of the decree and hence it is not the function of executing court to grant such permission. Alleging so, respondents also filed E.A.No.35 of 2010 to dismiss the execution petition. Executing court considered E.A.No.35 of 2010 and E.P.No.65 of 2009 and by a common order (Ext.P5) permitted petitioners to execute the decree for mandatory injunction but, disallowed prayer to permit petitioners construct bridge in the place of 'chappath'. Ext.P5, order to the extent it went to the petitioners is under challenge. It is contended by learned counsel that it is well within the power of the executing court to take into account subsequent events and grant relief accordingly.

(2.) I have gone through Ext.P5, order and heard learned counsel for petitioners. I find myself unable to give my assent to the argument advanced by learned counsel. The function of executing court is to execute the decree. It has been said on numerous occasions by binding authorities that executing court cannot go behind the decree and grant reliefs which are not provided for in the decree. It is not disputed that the decree permits petitioners to reconstruct only a chappath over the thodu with the permission of the local authority. Executing court can only execute the decree to that extent. That the local authority by a subsequent resolution (Ext.A4 marked in Ext.P5, order) permitted petitioners to construct a bridge in the place of 'chappth' is altogether a different matter but, that cannot be enforced through the executing court. Having gone through the order under challenge I do not find reason to interfere with the view taken by the executing court that it cannot permit construction of bridge instead of 'chappath' as provided in the decree.

(3.) Learned counsel for petitioners contend that even de hors the decree petitioners have acquired a right to construct bridge across the thodu in the light of the resolution of the panchayath granting permission to do so (Ext.A4 marked in Ext.P5, order). Assuming so, I make it clear that the order passed by the executing court will not stand in the way petitioners enforcing the right which they claim as per Ext.A4 (marked in the executing court) if they are otherwise entitled to that course, as provided under law. This petition is dismissed.