Allowed

Muhammedkutty v. Moideenkutty

Kerala HC1 Jun 2018OP(C)/315/2018

Case brief

AI extract

What is this about?

In this Opposuit Civil petition, the High Court of Kerala set aside several orders of the execution court that directed the decree holder to obtain municipal permission for constructing a wall, holding that the court had traversed beyond the decree which mandated restoration of the wall.

What did the court decide?

Set aside orders dated 15.12.2014, 06.06.2017, 07.11.2017, and 19.12.2017; directed execution of decree without municipal sanction.

Muhammedkutty Vs Moideenkutty — Property and Title | Kerala HC (2018)

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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 SATHISH NINAN

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FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940

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OP(C).No. 315 of 2018

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E.P.39/2005 IN OS.93/2013 of PRINCIPAL MUNSIFF'S COURT,PERINTHALMANNA

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PETITIONER/PETITIONER/PLAINTIFF :

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MUHAMMEDKUTTY, AGED 50, S/O. PULIKKATHADTHIL HAMZA, PULIKKATHADATHIL HOUSE, ALIPARAMBU AMSOM DESOM, PERINTHALMANNA TALUK, MALAPPURAM.

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BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA SMT.UMMUL FIDA SRI.E.C.AHAMED FAZIL

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RESPONDENTS/RESPONDENTS AND DEFENDANTS :

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1. MOIDEENKUTTY, S/O.KARATTIL MUHAMMED MUSLIAR, KARATTIL HOUSE, PERINTHALMANNA DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - 679 322.

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2. UMMER, S/O.KARATTIL MUHAMMED MUSLIAR, KARATTIL HOUSE, PERINTHALMANNA DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 679 322.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 315 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE JUDGMENT DATED 30.11.2004 IN OS.NO.93/2003 PASSED BY MUNISFF COURT, PERINTHALMANNA
EXHIBIT P2	TRUE COPY OF THE JUDGMENT DATED 25.08.2011 IN AS.NO.13/2005 PASSED BY ADDITIONAL DISTRICT COURT (ADHOC-II) MANJERI
EXHIBIT P3	TRUE COPY OF THE PETITION IN EP.NO.39/2005 ON THE FILES OF MUNSIFF COURT, PERINTHALMANNA
EXHIBIT P4	TRUE COPY OF THE ORDER DATED 15.12.2014 IN EP.NO. 39/2005 PASSED BY MUNSIFF'S COURT, PERINTHALMANNA
EXHIBIT P5	TRUE COPY OF THE INTIMATION DATED 03.03.2015 ISSUED BY SECRETARY, PERINTHALMANAN MUNICIPALITY
EXHIBIT P6	TRUE COPY OF THE APPLICATION IN EA.NO.29/2015 IN EP.NO.39/2015 ON THE FILES OF MUNSIFF COURT, PERINTHALMMANA
EXHIBIT P7	TRUE COPY OF THE COURTER IN EA.NO.29/2015 IN EP.NO.39/2015 ON THE FILES OF MUNSIFF COURT, PERINTHALMANNA
EXHIBIT P8	TRUE COPY OF THE ORDER DATED 06.06.2017 IN EA.NO. 29/2015 IN EP.NO.39/2015 PASSED BY MUNSIFF'S COURT, PERINTHALMANNA
EXHIBIT P9	TRUE COPY OF THE APPLICATION IN EA.NO.167/2017 IN EP.NO.39/2015 ON THE FILES OF MUNSIFF COURT, PERINTHALMANNA
EXHIBIT P10	TRUE COPY OF THE ORDER DATED 07.1.2017 IN EA.NO. 167/2015 IN EP.NO. 39/2015 PASSED BY MUNSIFF COURT, PERINTHALMANNA
EXHIBIT P11	TRUE COPY OF THE EA.NO.181/2017 IN EA.NO.167/2017 IN EP.NO. 39/2015 ON THE FILES OF MUNSIFF'S COURT, PERINTHALMANNA
EXHIBIT P12	TRUE COPY OF THE COUNTER IN EA.NO.181/2017 IN EA.NO.167/2017 IN EP.NO.39/2015 ON THE FILES MUNSIFF COURT, PERINTHALMANN
EXHIBIT P13	TRUE COPY OF THE APPLICATION IN EA.NO.182/2017 IN EA.NO.167/2017 IN EP.NO.39/2015 ON THE FILES OF MUNSIFF COURT, PERINTHALAMANNA

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OP(C).No. 315 of 2018 (O)

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EXHIBIT P14 TRUE COPY OF THE ORDER DATED 19.12.2017 IN EA.NO. 181/2017 IN EA.NO.167/2017 IN EP.NO. 39/2015 PASSED BY MUNSIFF COURT, PERINTHALAMANNA

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RESPONDENT(S)' EXHIBITS

NIL

TRUE COPY

P.S. TO JUDGE

5.6.2018

Sathish Ninan, J.

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==========================

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O.P(C) No.315 of 2018 =============================

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Dated this the 1^st day of June, 2018

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JUDGMENT

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The endeavour of execution court should be to see

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that a decree that has become final is executed and not thwarted.

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O.S No.93 of 2003 of the Munsiff's Court,

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Perinthalmanna filed by the petitioner herein as plaintiff was decreed in the following terms:

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“In the result, the suit is decreed with costs. The defendants are restrained from trespassing into the plaint schedule or committing any act of damages or wastes in the plaint schedule properties. The defendants are directed to restore the eastern laterite wall on eastern side of the plaint schedule failing which plaintiff

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O.P(C) No.315 of 2018

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-: 2 :-

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will be entitled to restore it at the costs of the defendants. Ext.C3(a) sketch will form part of the decree.”

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The defendants challenged the decree in appeal,

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A.S No.13 of 2005 before the Additional District Court, Manjeri. As per judgment dated 25.08.2011 the appeal was dismissed confirming the judgment of the trial court. E.P No.39 of 2005 was filed by the decree holder seeking execution of the decree for restoration of the eastern laterite wall in terms of Ext C3(a) Commissioner's sketch. The execution court went beyond the decree and as per order dated 15.12.2014 directed the decree holder to obtain permission from the Municipality for construction of the wall. In terms of the direction, the petitioner-

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decree holder applied for permission from the Municipality, to which the Municipality replied that permission is not necessary. Thereupon the petitioner filed E.A No.29 of 2015 seeking review of the order dated 15.12.2014 insofar as it directed obtaining of sanction

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O.P(C) No.315 of 2018

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from the Municipality. As per Ext P8 order dated 06.06.2017 the execution court dismissed the application

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stating that there is no error apparent on the face of the record. Thereafter the petitioner/decree holder filed E.A No.167 of 2017 seeking permission to construct a wall under the supervision of an Amin in terms of the order dated 15.12.2014. The execution court as per order dated 07.11.2017 allowed the application. Thereafter the judgment debtor filed E.A No.181 of 2017 to review the said order. As per the impugned order, the court below allowed the review.

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Evidently, the execution court has traversed beyond the decree. It ought to have executed the decree permitting construction of wall in conformity with Ext C3(a) plan without insisting for any sanction from the Municipality. At any rate, the decree should have been executed on the confirmation by the Municipality that their permission is not necessary. Ext P8 order dated

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O.P(C) No.315 of 2018

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-: 4 :-

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06.06.2017 in E.A No.29 of 2015, Ext P10 order dated

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07.11.2017 in E.A No.167 of 2017, Ext P14 order dated

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19.12.2017 in E.A No.181 of 2017 will stand set aside and the order dated 15.12.2014 in E.P No.39 of 2005 insofar as it directs obtaining of Municipal sanction will stand set aside. The execution court shall forthwith see that the decree in O.S No.93 of 2003 of the Munsiff's Court, Perinthalmanna is executed in terms of the decree.

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The original petition is allowed as above.

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Sd/- Sathish Ninan, Judge.

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vdv

Muhammedkutty v. Moideenkutty

Case brief

What is this about?

What did the court decide?

Muhammedkutty v. Moideenkutty

Case brief

What is this about?

What did the court decide?

What the court decided

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