S GIRIJA KUMARI Vs. RAJENDRAN

JUDGEMENT

(1.) O.S. No. 1/2001 on the file of the court of the Principal Munsiff of Thiruvananthapuram was one for a decree of permanent prohibitory injunction and also for permission to put up a boundary wall. The second plaintiff as well as defendant Nos. 3 and 5 entered into a compromise amongst themselves in the midst of suit. The other plaintiffs as well as defendant Nos. 1, 2 and 4 did not join the compromise. The suit was decreed in terms of the compromise as against persons who are parties thereto. The suit was dismissed as against defendant Nos. 1, 2 and 4 who did not join the compromise.

(2.) THE fifth defendant thereafter constructed a boundary wall pursuant to the compromise decree. Defendant Nos. 1 and 2 thereafter moved the execution court for demolition of the compound wall and restoration of status quo ante. The same was allowed by the execution court by order dated 12.11.2009 in E.P. No. 278/2009. The operative part of the order reads as follows:

(3.) A further identification of the boundary between the property of the additional fifth defendant and defendants 1 and 2 can only be done by a separate suit. Defendants 1 and 2 can of course rely on the report and plan in O.S. No. 386/2000 to which the additional fifth defendant was also a party. But then defendants 1 and 2 should be armed with a decree for fixation of boundary line separating the property. Such exercise cannot be permitted in execution of the decree in O.S. No. 1/2001 especially in the realm of Section 47 of the Code of Civil Procedure.