Allowed

Mathen Varghese v. Gopinatha Menon

Kerala HC4 Dec 2012CRP/414/2012

Case brief

AI extract

What is this about?

In a civil revision regarding execution of a decree concerning a pathway dispute, the High Court set aside the lower court order due to ambiguity about the nature of the right and pathway extent. The revisioner was directed to ascertain the nature of the right, depute a commissioner to report on the pathway condition, and pass a detailed order within three months.

What did the court decide?

Impugned order set aside; detailed order directed within three months following Advocate Commissioner report.

Mathen Varghese Vs Gopinatha Menon — Execution and Attachment | 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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TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934

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CRP.No. 414 of 2012 () ---------------------EP.NO.108/2012 IN OS.498/2006 of PRL.MUNSIFF COURT, ERNAKULAM

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REVISION PETITIONER(S):

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MATHEN VARGHESE, AGED 57 YEARS S/O. LATE CHACKO MATHEN, MALAYIL IYROOKUSHIL HOUSE, THEKKEANGADIKKAL, CHENGANNUR TOWN, CHENGANNUR TALUK, ALAPPUZHA REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BINU B. SAMUEL, AGED 33, S/O. LATE BABU SAMUEL, MUDIYIL HOUSE, KADAVANTHARA K.P. VALLON ROAD, KOCHI - 20, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM. BY ADVS.SRI.K.C.CHARLES SRI.POLY MATHAI SRI.P.CHELLAPPAN SRI.HARI MENON SRI.VIMAL K.CHARLES SRI.RENJU A.T.

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RESPONDENT(S):

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GOPINATHA MENON, AGED 63, S/O. KOCHUNARAYANI AMMA, CHERUPARAMBATH HOUSE, KADAVANTHARA, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM. 2. BEENA VARGHESE, AGED 53, W/O. MATHEN VARGHESE, MALAYIL IYROKUSHIL HOUSE, THEKKEANGADIKKAL, CHENGANNUR TOWN, CHENGANNUR TALUK, ALAPPUZHA NOW AT POST BOX NO. 24165, DOHA, QATAR. R1 BY ADV. SMT.AYSHA YOUSEF R1 BY ADV. SMT.MOLLY JACOB R1 BY ADV. SMT.RABIA BEEGAM T.K. R1 BY ADV. SRI.JOBI.A.THAMPI R1 BY ADV. SMT.M.KABANI DINESH R1 BY ADV. SMT.ASHIFA TALIB R2 BY ADV. SRI.E.N.HARI

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V. CHITAMBARESH, J

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C.R.P. NO. 414 OF 2012

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Dated this the 4^th day of December, 2012

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ORDER

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The issue pertains to execution, discharge and satisfaction of the decree in O.S. No. 498/2006 on the file of the court of the Principal Munsiff of Ernakulam. The suit though was dismissed by the trial court was decreed in appeal in A.S. No. 75/2007 on the file of the court of the District Judge of Ernakulam. A reading of the judgment in appeal would indicate that the petitioners/plaintiffs have a right to use the plaint 'B' schedule pathway.

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The respondents/defendants contend that the petitioners have a right to use the pathway for pedestrian traffic only. The petitioners assert that they have at any rate an unfettered right to use a portion of the plaint 'B' schedule pathway for vehicular traffic as well. The execution petition was filed complaining of obstruction by the respondents obviously under Order XXI Rule 32 of the Code of Civil Procedure.

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CRP No. 414/2012

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The plaint 'B' schedule pathway has to be ascertained and the blockade, if any, therein has to be removed by the process of court. What is the nature of the right granted under the decree and how far the 'B' schedule pathway extends has also to be deciphered. The execution court shall depute the Advocate Commissioner who was deputed in the original side (if available) to file a report about the condition of the 'B' schedule pathway as it now exists.

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The impugned order is set aside and the court below shall pass a detailed order after construing the judgment and decree adverting to the aspects reported by the Advocate Commissioner. The proceedings in the contest of Section 47 of the Code of Civil Procedure shall be taken to a logical end within a period of three months from the date of receipt of a copy of this judgment.

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The Civil Revision Petition is disposed of. No costs.

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V. CHITAMBARESH JUDGE

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ncd

Mathen Varghese v. Gopinatha Menon

Case brief

What is this about?

What did the court decide?

Mathen Varghese v. Gopinatha Menon

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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