MATHAI Vs. VARGHESE

JUDGEMENT

(1.) The revision petitioner is the judgment -debtor in O.S. No. 261 of 1981 on the file of the Principal Sub Court, Ernakulam. The respondent - decree holder filed E.A. No. 418 of 1994 to depute an experienced commissioner for fixing the boundary separating the plots C IIA and C IIB specified in the plan appended to the decree with the assistance of the Village Officer as well as the local police. This petition has been filed under S.151 of the Code of Civil Procedure. After the enquiry it was allowed by the court below by the order dated 6.1.1995. It is against the said order the present revision petition has been filed.

(2.) The facts which are necessary to resolve the dispute in this case, are capsulized thus: The suit, O.S. No. 261 of 1981 was laid for partition of the Plaint schedule property having 64 cents and separate possession of the plaintiffs half share. A final decree for partition was passed on 18.9.1992. The judgment -debtor was in possession and occupation of the property throughout. The Commissioner divided the plaint property into two equal halves and filed a report demarcating the shares to be allotted to each of the sharers and marked the plots as C II-A, and C IIB. The plot C II-A was allotted to the decree holder whereas plot C II-B was allotted to the judgment debtor. After the final decree, the decree holder filed E.P. No. 671/93 for executing the decree and thereby obtaining possession of the plot C II-A. The judgment debtor who was in possession of the entire property requested the court that he should be granted six months time to hand over possession of plot C II-A to the decree holder in terms of the decree. This court on 14.8.1993 granted a period of two months to the judgment debtor on condition that he would file an affidavit before the lower court unconditionally undertaking to surrender possession of the decree- holder's share within the said period. The judgment -debtor on 15.9.1993 filed the affidavit before the court below in compliance with the direction given by this court. On 18.10.1993, the judgment debtor surrendered plot C II-A to the decree holder voluntarily and thereby he entered into possession of plot C II-A. But when he proceeded to put up the fence at the boundary separating the plots C II-A and C II- B, the judgment -debtor resiled from his undertaking and objected to putting up the fence. In that situation, the decree -holder filed E.A. 1418/93 for injunction against judgment debtor and for police protection in putting up the fence on the boundary. That application was dismissed by the court below on 21.3.1992 in view of the fact that the execution petition filed by the decree holder, E.P. No. 671/93, was no longer in existence since it was already dismissed by the court on 19.10.1993, consequent on the delivery of the property to the petitioner. Later the decree- holder filed the present E.A. 418/94. In that petition the court below came to the conclusion that since there is no boundary separating the plots CII-A and C II-B it is necessary to measure out the properties again and to fix the boundary separating the said two plots. Therefore, a commissioner was appointed to measure the properties and to fix the boundaries with the help of the Village Officer.

(3.) The learned counsel for the petitioner argued that the application, E.A. No. 418/94 was not maintainable in as much as the execution petition E.P. No. 671 of 1993 was no longer in existence. He points out that the above E.P. was dismissed on 19.10.1993 consequent on the delivery of the plot C II-A property to the decree -holder on 18.10.1993. Of course this is a fact which is apodictic, . but at the same time this court cannot overlook the existence of the decree in O.S. No. 261 of 1981. When there is a competent decree and its executability is no longer in dispute, can this court forestall the decree holder from enjoying I the fruits of the decree S.47 C.P.C. covers the questions which are relevant at the anterior as well as posterior stages of execution of the decree. It embraces all matters connected with the execution of. an existing decree between the parties or their representatives and also covers all questions relating to the execution, discharge or satisfaction of the decree. The principle laid down by the Supreme Court in Merla Ramanna v. Nallaparaju ( AIR 1956 SC 87 ) would evince that it is immaterial whether such questions arise before or after the decree has been executed. In M.P. Shreevastava v. Mrs. Veena ( AIR 1967 SC 1193 it was held: