PEETHAMBARAN Vs. DILEEPKUMAR PANICKER

JUDGEMENT

(1.) This writ petition is filed under Art.227 of the Constitution of India seeking the following reliefs:

(2.) The short facts of the case leading to the execution of the decree in OS No. 647/1985 is as follows:

(3.) The Appellate Court in AS No. 94/2004, filed against the dismissal of OS No. 206/2000, held that the subject matter of the present suit is the subject matter in OS No. 647/1985 and the relevant issues relating to the mortgage have been decided by the Court in the said suit, that the defendant had already deposited the value of improvements as per the terms of the decree in OS No. 647/1985, that they have filed an execution petition and the same is in the final stage and observed that the prayer of the plaintiff is that he is entitled to get 3/4 share in the plaint schedule property and that he is also entitled for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property in OS No. 647/1985. The appellate Court in Ext. P6 also observed that the records produced before the Court reveals that the said matter is exclusively decided in OS No. 647/1985 and without resorting to his legal remedies in the execution proceedings the petitioner herein filed a separate suit which is barred under S.47 of the Code of Civil Procedure. The Court held that it is well settled that the question relating to the execution, discharge and satisfaction of the decree is covered by S.47 of the Code of Civil Procedure and such questions can be decided only by the Court executing the decree and not by a separate suit. The appellate Court made clear that all aspects pertaining to the dispute between the decree holder and the judgment debtor required to be determined only in the execution petition and not by a suit. After stating the principles the appellate Court in paragraph 9 of Ext. P6 held as follows: