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B. M. SHYAM PRASAD
Raja – Appellant
Versus
K. Narayana Shetty – Respondent
| Table of Content |
|---|
| 1. introduction and case background. (Para 1 , 2) |
| 2. details of prior court orders and submissions. (Para 3 , 4) |
| 3. issues with the commissioner's report and execution. (Para 5 , 6 , 7 , 8 , 9) |
| 4. consideration of boundaries and sketches in determination. (Para 10) |
| 5. court's decision and directions for re-examination. (Para 11 , 12) |
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
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.
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