ABDULRAHIMAN Vs. PARAMESHWARAI AMMA

JUDGEMENT

(1.) This revision petition is filed by the judgment debtor in O.S. 211 of 1986. The revision if filed against the order in E. A. 8 of 1998 in E.P. 303 in E.P. 303 of 1990 in O.S. 211 of 1986 on the file of the Munsiffs Court, Kasaragod. The plaintiffs instituted a suit against the defendant for two reliefs; one was for a mandatory injunction and the other was for a prohibitory injunction. There was a sketch attached to the plaint. The relief prayed for was with regard to the above sketch. According to the plaintiff, there was a road in which obstructions were created by the defendant by planting coconut trees at the points 'A1' and 'A2' and also by construing a fence 'F'. The mandatory part of the injunction was to remove the obstructions to road 'R' at 'A1' and ' A2' and also the fence 'F' and by filling up all the coconut plant pits. The prohibitory injunction was to restrain the defendant from obstructing road 'R' mentioned in the eye sketch. The Trial Court passed the following decree, which was confirmed in the appeal and the second appeal:

(2.) Learned counsel for the petitioner Sri. D. Krishna Prasad submitted that his client has no objection in executing the decree in its present form. According to him, the decree refers only the eye sketch and if property is not identified as per the eye sketch, then the decree becomes unexecutable. He further contended that even if it can be accepted that property can be identified on the basis of Exts. C2 plan, the Court below was not right in directing the Amin to remove the obstructions on the basis of Ext. C2 plan without he being satisfied as to the exact nature of the property.

(3.) Sri. M.C. Sen, the learned counsel for the respondents submitted that it is true that the decree mentions about the eye sketch. But, the eye sketch does not contain any measurements. In the suit itself a Commissioner was appointed to identify the road and the obstructions created to the road. These were identified on the basis of Ext. C2 plan. As a matter of fact, the eye sketch mentioned in the decree has not been marked in the suit. He contended that the executing Court is well within its power to take the measurements on behalf of Ext. C2 plan in order to identify the road and the obstructions. He also stressed on the power of the executing Court to construe a decree and also rely the documents produced, ie, the plan, etc., for the purpose of construing the decree. He further submitted that let the Amin first identify the road and the obstructions. The order for removal of the obstruction need be passed only after hearing the petitioner with regard to his objections to the Amin's report.