RETNASAWAMY Vs. JUSTIN

JUDGEMENT

(1.) The petitioner is the son of the plaintiff in the suit. The suit was filed for redemption and partition. After preliminary decree, an Advocate Commissioner was appointed to measure the property and file a report. Accordingly, the report was filed, allotting plot-A in the Commissioner's plan to the plaintiff, in the final decree proceedings. Thereafter, the plaintiff filed an execution petition for taking delivery of the property at Plot-A allotted to him. Accordingly, delivery was ordered on 19.2.2004. The Amin appointed by the Court visited the suit property and delivered Plot-A to him on 21.2.2004. At that stage, the 41st defendant in the suit filed a petition before the Executing Court in E.A.No.59 of 2004 in O.S.No.28 of 1964, requesting the Court to pass an order not to record the delivery, since the delivery order was passed without notice to necessary parties.

(2.) Enquiry was conducted in the said petition. The Amin was examined. On behalf of the respondent herein, the 41st defendant (the petitioner in E.A.), he himself was examined as a witness. Then the Executing Court concluded that the extent measured by the Amin for delivery is more than the extent mentioned in the final decree and as such, the same is deviated from the final decree. The Executing Court ultimately concluded that the delivery alleged to have been effected by the Amin, cannot be recorded. This order is under challenge before this Court by the plaintiff.

(3.) According to the plaintiff, already the plaintiff had taken delivery of possession in Plot-A on 21.2.2004 itself and all that remains to be done is to record delivery and it is purely an administrative order. As such, the lower Court is wrong in passing an order not to record the delivery. It is also submitted that the Executing Court cannot go beyond decree.