K.RAVEENDRAN Vs. P.K.KESHAVABABU

JUDGEMENT

(1.) The judgment debtor in O.S.No.744/2003 on the files of the Additional Munsiff's Court, Alappuzha is the petitioner before this Court.

(2.) The petitioner impugns Ext.P10 order of the Execution Court, as per which, he has been ordered to demolish certain structures in the decree schedule property, finding that he has illegally constructed them in violation of the decree. The petitioner, however, contends that even though the decree schedule property has been defined to be a house with two rooms and a kitchen along with an outhouse comprised of a bath room and a latrine, there are several other structures which were remaining on it even at the time when the suit had been filed. The petitioner says that, the facts as stated in the plaint are incorrect and that he had filed a written statement wherein this has been specifically stated in paragraph 5 thereof, but concedes that this aspect has not been considered by the Trial Court in the judgment and decree. He then submits that any order to demolish the structures could have been issued against him by the Execution Court only if it had been established by the respondents that these constructions were made after the decree had been issued, particularly because the Execution Court is acting under Order XXI Rule 32 of the CPC. He says that, contrary to the above, even the report of the learned Advocate Commissioner would show that no construction had been made by him in the decree schedule property at any point of time as alleged and therefore, that the impugned order is liable to be set aside.

(3.) In response to the afore submissions made on behalf of the petitioner by Sri.A.Balagopalan, the learned counsel for the respondents Sri.R.Azad Babu submits that the present stand of the petitioner cannot brook to reason or law because the decree describes the property to be a house with two rooms and a kitchen, along with an outhouse comprised of a bath room and a latrine. He says, therefore, that every other construction in the property will have to be seen as having been constructed by the petitioner after the decree and therefore, that the Execution Court has been without any error in having issued the impugned order. He adds to the above submissions by saying that, even going by the report of the Advocate Commissioner, the property has several structures, which obviously had been put up much after the decree had been issued. He says that the contentions of Sri.A.Balagopalan that objections have been raised even in the written statement regarding the presence of other structures in the plaint schedule property may not be accepted by this Court because even during the time when appeals were preferred by the petitioner against the judgment and decree before the First Appellate Court and before this Court, there was not even a whisper regarding this in the pleadings or in the submissions. He thus prays that this original petition be dismissed.