AJI KUMAR Vs. B RAJALAKSHMI

JUDGEMENT

(1.) PETITIONERS are the legal representatives of third defendant in O.S.No.252 of 1974 of the court of learned Munsiff, Thiruvananthapuram. Respondents 1 to 6 got a degree for redemption of mortgage over plaint A schedule with the third defendant, predecessor-in-interest of petitioners also on record and as the learned counsel for respondents 1 to 6 would submit, the preliminary decree was challenged upto the Supreme Court but was confirmed. The second stage of the challenge was in respect of the final decree, which was confirmed by this Court in R.S.A.No.901 of 2005. The challenge to the final decree ended there. Respondents 1 to 6 initiated execution proceeding and sought redemption of mortgage and delivery of plaint A schedule. At that stage petitioners (legal representatives of the third defendant) filed E.A.No.260 of 2011 (in E.P.No.230 of 2003 in O.S.No.252 of 1974) contending that the bunk shop which they are occupying is not liable to be removed in view of the observations this Court has made in the judgment in R.S.A.No.901 of 2005. Respondents 1 to 6 filed Ext.P6, objection to that application contending that petitioners have no legal right to raise any such contention and that at the time of filing the suit the alleged bunk shop was situated towards middle of plaint B schedule but later it was shifted towards north to obstruct delivery of property. Executing court passed Ext.P7, order dated June 25, 2011. It felt bound by the preliminary and final decrees and observed that objection raised by petitioners cannot stand. Accordingly their objection was overruled and delivery was ordered. That order is under challenge. Learned counsel for petitioners contend that the executing court has not referred to the direction in the judgment in R.S.A.No.901 of 2005. It is also the submission of learned counsel that there is no material on record to substantiate the contention of respondents 1 to 6 that the bunk shop occupied by petitioners (and before them, their predecessor-in-interest, the third defendant) was shifted to the northern side of plaint B schedule as contended in Ext.P6, objection. It is the contention of learned counsel that in appropriate case it is open to the executing court to go behind the decree and look into the pleadings and proceedings leading upto the decree. Learned counsel has placed reliance on the decision in Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another (AIR 1972 SC 1371).

(2.) LEARNED counsel for respondents 1 to 6 contended that so far as respondents 1 to 6 are concerned it is a hard-earned decree obtained after heavy contest and different stages in different courts. Even in the course of execution there were objections and carried to the appellate court and ultimately all objections were overruled. At that stage petitioners approached the executing court with E.A.No.260 of 2011 to obstruct delivery. It is pointed out by learned counsel that at no point of time there was any objection to redemption of mortgage of plaint A schedule and delivery of the said item which included the five feet pathway along the northern side of plaint B schedule which is clear from the description of property in Ext.P6 which included the said pathway on the northern side. It is pointed out by the learned counsel that at no point of time the predecessor-in-interest of petitioners (third defendant) had a contention that the bunk shop where petitioners and their predecessor-in-interest are/was doing business is situated in any portion of the said five feet wide pathway. In the circumstances, petition is without merit, it is submitted.

(3.) NOW I must refer to the decree schedule. A schedule is 15 cents forming part of the 20 cents towards its western side, together with the five feet way along the northern side of the five cents (which is described in plaint B schedule). In the B schedule, it is specifically stated that the said item excludes the said path way having width of five feet. Thus, it is clear that the way having width of five feet along the northern side of B schedule formed part of plaint A schedule. It is in the above circumstances that learned Munsiff and this Court in Second Appeal observed that the decree for redemption of plaint A schedule which took in the way having five feet width along northern side of B schedule did not affect tenancy right of respondents 9 to 11 in the Second Appeal. I do not find anything to show that at any point of time except in E.A.No.260 of 2011 either petitioners or their predecessor-in-interest had pointed out that any portion of the tenanted building is situated on the five feet wide way referred to in express terms in plaint A and B schedules. If that be so, observations made by the learned Munsiff in the order on I.A.No.2284 of 1989 and the direction made by this Court in R.S.A. cannot relate to the plaint A schedule which takes in five feet wide way along northern side of plaint B schedule.