Pathrose vs MM Sam @ Mathew Sam

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 4TH DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945 IN EP 123/2016 AND EP 93/2019 IN OS 152/2010 OF MUNSIFF'S COURT, PERUMBAVOOR PETITIONER [DECREE HOLDER IN EP 123/2016, JUDGMENT DEBTOR IN EP 93/2019/ DEFENDANT]: PATHROSE, AGED 59 YEARS, S/O PAILY, CHEMMALA HOUSE, VILANGU KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, PIN - 683562 BY ADVS. P.THOMAS GEEVERGHESE TONY THOMAS (INCHIPARAMBIL) E.S.FIROS SRADHA MOHAN RESPONDENTS [JUDGMENT DEBTOR IN EP 123/2016, DECREE HOLDER IN EP 93/2019/ PLAINTIFF]: 1 MM SAM @ MATHEW SAM, AGED 56 YEARS, S/O EASHO MATHEW, MAMOOTTIL HOUSE, VILANGU KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, PIN - 2 BEENA GEORGE, AGED 51 YEARSW/O MM SAM @ MATHEW SAM, MAMOOTTIL HOUSE, VILANGU KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, PIN - 683562 SRI.S.B.PREMACHANDRA PRABHU [R1 & R2] THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The petitioner impugns Exts.P10 and P13 orders, alleging that the learned Munsiff's Court, Perumbavoor, has substituted the Surveyor who had originally prepared the plan appended to the decree obtained by him in O.S.No.152/2010. He also calls into question Ext.P18 order in E.A.No.315/2022 in E.P.No.93/2019, filed for executing the afore decree contending that said Court has gone beyond the decree, in directing the Surveyor to make measurements and to complete the Execution Proceedings.

2. Sri.P.Thomas Geevarghese - learned counsel for

the petitioner, argued that the decree in question was issued on the basis of Ext.C4(a) plan prepared by a Surveyor by name Sri.I.P.Sivaraman, but that the Execution Court has now directed the Taluk Surveyor to execute the decree, based on the same as also various other plans which are not its part. He argued that Exts.P10 and P13 orders, substituting the aforementioned Sri.I.P.Sivaraman are, therefore, illegal and unlawful, especially because, it is the plan prepared by him which has been appended to the decree sought to be executed. He then predicated that Ext.P18 order travels much beyond the scope of the decree itself, by directing the Taluk Surveyor to measure the properties scheduled to it, based on other plans which are not its part. He thus prayed that the impugned orders be set aside and the learned Execution Court be directed to appoint Sri.I.P.Sivaraman to execute the decree in terms of the plan prepared by him and which has been appended to it as Ext.C4(a).

3. In response to the afore submissions of the

petitioner, as made by his learned counsel - Sri.P.Thomas Geevarghese, the learned counsel appearing for the respondents - Sri.Premachandra Prabhu, argued that attempt of the petitioner is to bring back Sri.I.P.Sivaraman, who had been removed by the Court a year and a half ago, noticing that there were allegations of bias impelled against him. He asserted that Exts.P10 and P13 orders are irreproachable; while the Execution Court cannot be found to have committed any error in issuing Ext.P18 order, since it has only ordered the Taluk Surveyor to measure the decree scheduled properties as per the plans appended to it, including Ext.C4(a). He affirmed that his clients are also without doubt that the decree will have to be executed in terms of the plan appended to it, and not on any other; and that since there is no contest about this, the anxiety now exhibited by the petitioner is without any basis. He thus prayed that this Original Petition be dismissed.

4. I have considered the afore rival submissions and also gone through the orders impugned.

5. As rightly argued by the respondents, the original

plan was prepared by the aforementioned Sri.I.P.Sivaraman and it is marked as Ext.C4(a), which is, admittedly part of the decree. However, when the said decree was sought to be executed, certain allegations of bias were imputed against the Surveyor by some of the decree holders, which persuaded the Execution Court to substitute him with the Taluk Surveyor and this order was issued over than a year and a half before the impugned Exts.P10 and P13. Pertinently that order has not been challenged and it has now become final.

6. Obviously, therefore, when there was no challenge

by the petitioner to the order of the Execution Court substituting Sri.I.P.Sivaraman by the Taluk Surveyor, one fails to understand how they can now challenge Exts.P10 and P13 proceedings, particularly when there is not even a whispering allegation from their side that the present Surveyor - who is the jurisdictional Statutory Authority - is incompetent or without the expertise to conduct the survey, to obtain fair execution of the decree in question. I, therefore, cannot find the challenge to Exts.P10 and P13 to be tenable in any manner whatsoever.

7. That said, as afar as Ext.P18 order is concerned,

again, I see no cogent reason for the petitioner to be anxious because, the learned Judge has very carefully directed that the decree be executed based on the plans appended to it, including Ext.C4(a). Of course, it is the conceded stand of the rival parties that the decree contains only one plan, which is Ext.C4(a); and that it can be executed based on the same, surveying all the decree scheduled properties. If this is done, I cannot see any prejudice to either of the parties and to such extent, cannot find the orders of the Execution Court to be erroneous. However, I deem it necessary to clarify that, while executing the decree, only the plan appended to it be taken note of by the Competent Surveyor and no other. In such circumstances, I dismiss this Original Petition, however, with the afore clarification and leave liberty to the petitioner to invoke any remedy in future, that may be available to him as permitted in law; but further clarifying that this has not been spoken to or touched upon by this Court in this judgment. Sd/-DEVAN RAMACHANDRAN, JUDGE lsn APPENDIX OF OP(C) 1748/2023 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE JUDGMENT IN OS PERUMBAVOOR DATED.26.10.2016 Exhibit P2 TRUE COPY OF THE DECREE AND PLAN IN OS.152/2010 OF MUNSIFFS COURT, PERUMBAVOOR DATED.26.10.2016 Exhibit P3 THE TRUE COPY OF JUDGMENT IN RSA NO.331/2019 DATED.27.8.2019 OF THE HIGH COURT OF KERALA

Exhibit P4               TRUE COPY OF       THE EP 123/2016 IN
                         OS.152/2010         MUNSIFF'S   COURT,
Exhibit P5               TRUE   COPY   OF    THE  EP.93/2019   IN
                         OS.152/2010        MUNSIFF'S      COURT,
Exhibit P6               THE TRUE COPY OF THE DELIVERY REPORT
                         IN    EP.123/2016     IN OS.152/2010

DATED.4.7.2020 Exhibit P7 TRUE COPY OF DELIVERY REPORT IN EP.93/2019 IN OS.152/2010 MUNSIFF'S COURT, PERUMBAVOOR

Exhibit.P8               THE TRUE COPY OF THE APPLICATION
                         EA.88/2021    IN     EP.123/2016     IN
                         OS.152/2010      MUNSIFF'S       COURT,

PERUMBAVOOR DATED.9.4.2021 Exhibit.P9 THE TRUE COPY OF THE ORDER IN EP.123/2016 IN OS.152/2010 DATED.17.6.2022 OF MUNSIFF'S COURT,

Exhibit.P10              TRUE COPY OF THE ORDER IN EP.123/2016
                         IN     OS.152/2010     DATED.29.6.2022
Exhibit.P11              THE TRUE COPY OF THE APPLICATION IN
                         EA.149/2022    IN   EP.123/2016   IN

OS.152/2010 DATED.5.7.2022 MUNSIFF'S COURT, PERUMBAVOOR Exhibit.P12 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN EA.149/2022 IN EP.123/2016 IN OS.152/2010 DATED.13.7.2022 MUNSIFF'S COURT,

Exhibit.P13              THE TRUE COPY OF THE ORDER IN EA
                         DATED.2.8.2022     MUNSIFF'S    COURT,
Exhibit.P14              THE TRUE COPY OF THE REPORT FILED BY
                         THE    ADVOCATE     COMMISSIONER   IN

EP.123/2016 IN OS.152/2010 20/12/2022 Exhibit.P15 THE TRUE COPY OF ORDER PASSED IN EA DATED.1.4.2023

Exhibit.P16              THE TRUE COPY OF THE PETITION        IN
                         EA.315/2022    IN     EP.93/2019     IN
                         OS.152/2010     DATED.20.12.2022     OF
Exhibit.P17              TRUE COPY OF THE OBJECTION FILED BY
                         THE   RESPONDENT IN  EA.315/2022   IN
                         EP.93/2019       IN       OS.152/2010

DATED.3.1.2023 OF MUNSIFF'S COURT,

Exhibit.P18              THE   TRUE  COPY   OF   THE  ORDER   IN
                         EA.315/2022    IN     EP.93/2019     IN
                         OS.152/2010      DATED.1.4.2023      OF
Exhibit.P19              THE TRUE COPY OF THE DAILY STATUS IN

WEB SITE EP.123/2016 DATED 22/5/2023 Exhibit.P20 THE TRUE COPY OF THE DAILY STATUS IN WEB SITE IN EP.123/2016 MUNSIFF'S COURT, PERUMBAVOOR DATED 30/6/2023 RESPONDENTS EXHIBITS: NIL TRUE COPY P.A TO JUDGE LSN