JANAKI Vs. RAVI

JUDGEMENT

(1.) Petitioner is the decree holder in E.P.No.28 of 2005 in O.S.No.311 of 1990 on the file of the Munsiff Court, Mavelikkara. Petitioner is aggrieved by Ext.P7 order passed by the said court in E.A.No.46 of 2005. The said E.A was filed by the judgment debtors. Ext.P5 is the copy of the said E.A filed for permitting the judgment debtors to examine the witnesses and adduce evidence with regard to the identity of the decree schedule property. The judgment debtors adduced oral and documentary evidence in support of their case that the property sought to be delivered is not the decree schedule property. Judgment debtors examined PWs 1 to 3 who are the village officer and taluk surveyors. The decree holder produced Exts.B1 survey plan.

(2.) In the decree dated 30.6.1995 passed in O.S.No.311 of 1990 the court declared the title of the plaintiff over the plaint item No.2 and directed the defendants to dismantle and remove the shed within three months from the date of the decree, failing which the plaintiff will be at liberty to remove it through court and realise the expenses from the defendants. A decree for consequential injunction was also passed. The plaint item No.2 is one cent of property comprised in survey No.305/1A/1. In the execution petition filed by he plaintiff/decree holder the execution court ordered delivery of the property. The order was passed by the execution court without hearing the judgment debtors who remained ex-parte. When the Amin went to the spot there was obstruction for delivery and so delivery was not effected. Thereafter the judgment debtors entered appearance and filed the present E.A for permitting them to adduce evidence with regard to the identity of the property. It is the definite case of the judgment debtors that the property sought to be delivered is not the decree schedule property. The court after examining the oral and documentary evidence adduced by the judgment debtors held that the decree holder is not entitled to recover possession of the decree schedule property since she failed to identify the property. The learned judge held that the judgment debtors have proved that the decree holder is not having any property in survey No.224/2.

(3.) The grievance of the petitioner/decree holder is that the executing court without properly considering the evidence on record, illegally held that the decree holder is not entitled to recover possession of the property from the judgment debtors and that the court illegally dismissed the execution petition instead of dismissing the E.A. The judgment debtors who have filed the E.A for permitting them to adduce evidence to prove that the property sought to be delivered is not the decree schedule property did not take commission to measure and identify the property sought to be delivered. In the facts and and circumstances of the contentions of the respective parties, the identification and demarcation of decree schedule property is necessary for a just and proper disposal of the execution petition. It is a fact that the decree holder failed to apply for a survey commission. In the facts and circumstances discussed above, it has become necessary to identify the property sought to be delivered. For that purpose the decree holder shall be given an opportunity to adduce evidence in support of her case that the property sought to be delivered is the decree schedule property. The decree holder shall take steps to appoint an advocate commissioner for measurement and demarcation of the decree schedule property. The execution petition shall be considered on merits after giving an opportunity to the decree holder to adduce evidence in support of her claim under the decree. Therefore Ext.P7 order is set aside. The executing court is directed to reconsider the matter on the basis of the findings and observations made above. The writ petition is disposed of as above.