M RAJAGOPAL Vs. SHANTHAKUMARI

JUDGEMENT

(1.) THE petitioners/second respondents/decree holders have preferred this civil revision petition as against the order dated 18. 06. 2009 in E. A. No. 7814 of 2008 in E. P. No. 3353 of 1991 in O. S. No. 522 of 1981 passed by the Learned IX Assistant Judge City Civil Court in allowing the application filed by the respondent/obstructor under Section 151 of Civil Procedure Code praying for issuance of a specific direction to the Bailiff at the time of executing the warrant that the Decree shall be executed only after precisely defining the boundaries of the property mentioned in the Decree and described in the application.

(2.) THE Executing Court while passing orders in E. A. No. 7814 of 2008 dated 18. 06. 2009 has among other things observed that 'as such the boundaries referred to in the Decree has to be defined specifically for enabling the bailiff to Execute the warrant and deliver within the four boundaries referred to in the Decree. As there will not be any prejudice or hardship to any of the parties, the petition prayed by the petitioner is for a relief of giving specific direction to the bailiff as sought for in the order and resultantly allowed the application without costs.

(3.) THE learned counsel for the revision petitioners/decree holders submits that the Executing Court while allowing E. A. No. 7814 of 2008 dated 18. 06. 2009 has exceeded the jurisdiction vested in it by issuing directions in allowing the application filed by the respondent/obstructor thereby redefining the boundaries of the property forming the subject matter of the Execution Petition and when there is no dispute in regard to the identification of the property then there is no need to allow the E. A. No. 7814 of 2008 and it is the primordial duty of an Executing Court to execute the Decree as it is and in the absence of the Court the bailiff finding it difficult to execute the Decree passed by the trial Court as confirmed by the High Court and Hon'ble Supreme Court, it is not open to the Executing Court to suggest, in what manner the Decree is to be implemented by defining the boundary when there is no discrepancy in the boundaries and actual area and moreover, the dispute regarding the boundaries has been raised an application filed under Section 47 of the C. P. C. and the same has been dismissed and later affirmed by this Court in Civil Revision Petition No. 499 of 2006. Added further, the Executing Court has not taken note of the fact that the respondent/obstructor has projected an application under Order XXI Rule 93 of Civil Procedure Code to declare her as an obstructor and the same has been dismissed and confirmed up to the Hon'ble Supreme Court and that apart, an application to appoint an Advocate Commissioner for identifying the property has been dismissed on the ground that the dispute regarding the boundaries has already been raised an application under Section 47 of Civil Procedure Code and the same cannot be agitated once again by the respondent and the respondent what she cannot achieve directly cannot be achieved by her indirectly after having failed in all earlier attempts and in short the direction given by the Executing Court in E. A. No. 7814 of 2008 is an arbitrary exercise of judicial discretion which requires interference by this Court sitting in revision and therefore, prays for allowing the civil revision petition to prevent an aberration of justice.