K M KESAVAN Vs. MOOKAMBIKA AMMA

JUDGEMENT

(1.) Petitioner is the decree holder. First respondent is the deceased judgment debtor and respondents 2 to 8 are her legal heirs. As Per Ext.P1 compromise, first respondent agreed to give 3 cents of land from her properties on the western side through out the north-south direction to petitioner, which is in continuation of the property of his wife, who was the second defendant in the suit. Accepting Ext.P1 compromise petition, a decree was passed directing first respondent to execute a sale deed in respect of the said three cents, agreed to be assigned, in favour of petitioner within three weeks from the date of the decree. It was also provided that on her failure, petitioner can get the sale deed executed through Court. Petitioner filed E.P.281/01 before Munsiff Court, Ernakulam for execution of the decree. A commissioner was appointed and the commissioner demarcated the property. Petitioner contended that the three cents agreed to be assigned under the compromise decree has to be identified only after identifying the plaint schedule property, which lies to the west of the property of second defendant in the suit and as there is some excess land, which belongs to his wife the second defendant. According to petitioner plaint schedule property should be measured first and only thereafter the three cents can be fixed. Judgment debtor contended that the property agreed to be given to petitioner is the three cents, which lies immediately to the west of the western boundary of the property of the wife of petitioner. Commissioner prepared two sketches in accordance with the contentions raised by parties. Under sketch 1, plot B was shown as the three cents, agreed to be given to the petitioner under the compromise decree. The Commissioner has shown plot A as the property of the wife of petitioner and plot C as the remaining property of the judgment debtor and plot B as the three cents. Commissioner under sketch II had shown the property of the wife of petitioner as plot C, 3 cents as plot B and the remaining property of judgment debtor as plot A. The executing Court accepted the first sketch and held that what was agreed by judgment debtor is to sell the three cents property which lies immediately touching the western boundary of the property of the wife of petitioner and therefore plot B marked therein is the three cents which is agreed to be sold. The executing Court under Ext.P4 order directed the judgment debtor to surrender that property and to execute the sale deed in favour of petitioner. Ext.P4 is challenged in this petition filed under Article 227 of Constitution of India.

(2.) The argument of learned Counsel appearing for petitioner is that what was agreed to under the compromise deed is to sell three cents of property from the property of the judgment debtor,which is 12 cents and the executing Court should have fixed that 12 cents and demarcated three cents which lies on the eastern side of the said 12 cents and if so, the executing Court should have relied on the sketch No.2 and Ext.P4 order is to be quashed.

(3.) On hearing learned counsel appearing for petitioner, I do not find any infirmity in Ext.P4 order warranting interference in exercise of the extraordinary jurisdiction of this Court under Article 227 of Constitution of India.