Allowed

Rosy Antony v. Bhasi K Nair

Kerala HC12 Nov 2012CRP/298/2011

Case brief

AI extract

What is this about?

The High Court quashed the order dismissing the execution petition and set it aside, holding that the decree pertained only to fixing the northern boundary. The court directed the executing court to expedite proceedings regarding the northern boundary but clarified that construction of walls on other boundaries required separate remedies.

What did the court decide?

The impugned order dismissing the execution petition is set aside.

Rosy Antony Vs Bhasi K Nair — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934

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CRP.No. 298 of 2011 ( )

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-------------------------------OS.457/2003 of PRINCIPAL MUNSIFF COURT,ERNAKULAM

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REVISION PETITIONER(S)/DECREE HOLDERS/DEFENDANTS:

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1. ROSY ANTONY, W/O. LATE ANTONY, AGED 54 YEARS, ELANJIMATTATHU HOUSE, NETTOOR.P.O. MARADU, ERNAKULAM.

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2. SHINU ANTONY, D/O. LATE ANTONY, AGED 32 YEARS, RESIDING AT ELANJIMATTATHU HOUSE, NETTOOR. P.O., MARADU, ERNAKULAM.

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3. SHIBU ANTONY, S/O. LATE ANTONY, AGED 26 YEARS, RESIDING AT ELANJIMATTATHU HOUSE NETTOOR.P.O., MARADU, ERNAKULAM.

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4. RAYMOND ANTONY, S/O. LATE ANTONY, AGED 24 YEARS, ELANJIMATTATHU HOUSE, NETTOOR.P.O. MARADU, ERNAKULAM.

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BY ADVS.SRI.R.GITHESH

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SRI.P.PRIJITH SRI.S.VAIDYANATHAN

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RESPONDENT(S)/JUDGEMENT DEBTORS/PLAINTIFFS:

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1. BHASI.K.NAIR, S/O. K.S.PILLAI,

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AGED 47 YEARS, ASOK NILAYAM, MANIKKATH CROSS ROAD, PERUMANOOR, ERNAKULAM-682015.

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2. JAYALAKSHMI.P., W/O. BHASI K.NAIR, AGED 39 YEARS, ASOK NILAYAM, MANIKKATH CROSS ROAD PERUMANOOR, ERNAKULAM-682015.

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R1 & 2 BY ADV. SRI.SIBY MATHEW R1 & 2 BY ADV. SRI.PHILIP J.VETTICKATTU R1 & 2 BY ADV. SRI.B.PREMNATH (E)

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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tss

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V.CHITAMBARESH, J.

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C.R.P.No.No.298 of 2011

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Dated this the 12^th day of November, 2012

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O R D E R

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The operative portion of the judgment in O.S.No.457 of

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2003 on the file of the court of the III^rd Additional Munsiff of

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Ernakulam reads thus:-

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“In the result, suit is decreed as follows:

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(a) The northern boundary of plaint A schedule property is fixed as per Ext.CI(a) plan. Ext.C1(a) will form part of the decree.

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(b) Defendants are restrained by a decree of permanent prohibitory injunction from trespassing into plaint A schedule property after fixing the northern boundary of the same.”

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It is thus evident that a decree has been granted only for

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the fixation of the northern boundary of the plaint A schedule property on the basis of Exts.C1(a) plan appended to the decree. The incidental rights of an owner to put up a fence or a boundary wall on the boundary so fixed by the decree has been upheld in

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Varghese v. Sivaraman (2011 (1) KLT 1005). Even the defendants in a suit for fixation of boundary can apply for its

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C.R.P.No.No.298 of 2011 2

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execution through court as held in Damodara Panicker v. Ayyappankutty(1962 KLT 637). Therefore the court below erred in dismissing the execution petition and the order impugned is set aside.

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I hasten to add that the decree pertains only to fixation of northern boundary of the plaint A schedule property for which alone the aid of the executing court can be sought. The construction of the compound wall or fence along other boundaries is not taken in by the decree for which the parties have to resort to other remedies. The execution court shall make every endeavour to expedite the proceedings soon after the receipt of a copy of this order.

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The Civil Revision petition is disposed of. No costs.

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V.CHITAMBARESH JUDGE

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mns/

Rosy Antony v. Bhasi K Nair

Case brief

What is this about?

What did the court decide?

Rosy Antony v. Bhasi K Nair

Case brief

What is this about?

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