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B. M. SHYAM PRASAD
Raja – Appellant
Versus
K. Narayana Shetty – Respondent
ORDER :
1. This petition is by the Judgment Debtors in Execution No.244/1991 on the file of the II Additional Civil Judge and JMFC, Mangalore, Dakshina Kannada [for short, the 'executing Court']. The petitioners are aggrieved by the executing Court's order dated 16.02.2017, and the executing Court by this order has accepted the Court Commissioner's Report, which is filed along with plans, holding that the petitioners must hand over the property that is marked in color 'Pink' in Plan-2 annexed to the Report. Sri. G. Krishna Murthy, the learned Senior Counsel for the petitioners, and Sri. Cyril Prasad Pais, the learned counsel for the respondent, are heard for final disposal of the petition.
2. The undisputed facts are that the respondent's suit in O.S.No. 179/1977 is decreed on 24.11.1981, but this judgment and decree is revisited by this Court in RSA No.621/1989 at the instance of Sri. M. Madhava [the first defendant in the suit] and his wife Sunanda [the second defendant in the suit and the third petitioner herein]. Sri. M.Madhava has died, and he is represented by his children [the first and the second petitioners]. The dispute relates to the respondent's case that Sri. Madhava and
Point of Law : when the plaintiff approached the learned Munsiff for fixing the southern boundary of his property, the Munsiff is bound to adjudicate the dispute and to give a verdict.
The main legal point established is that under Odisha Amendment of Order XXI Rule 22 CPC, notice to all parties to the suit is not required for execution proceedings, and objections raised during exe....
Irregularity in Local Commissioner's demarcation report due to non-compliance with land revenue instructions requires fresh commission, not dismissal of possession suit alleging encroachment.
The court is not obliged to permit the examination of a Local Commissioner unless substantial grounds justify it, highlighting the primacy of modern technology for accurate property demarcation.
Judicial reliance on flawed reports undermines due process, necessitating remand for proper property identification in partition claims.
Execution courts must adhere to established decrees and may not permit repeated objections from judgment debtors if original issues have been addressed.
The court upheld the trial court's decision, confirming that Commission reports must adequately support the identification of disputed property, emphasizing the importance of presenting sufficient ev....
The court clarified that reliance on an unchallenged Commissioner's report for title determination is improper without accurate property measurement, and limitation for recovery of possession involve....
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