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1987 Supreme(Ker) 235

PADMANABHAN
KARUNAKARAN – Appellant
Versus
JANAKI AMMA – Respondent


Judgment :-

1. In execution of a decree declaring a right of way as an easement of necessity and allowing consequential reliefs, the decree-holders took steps to carve out the way provided in the decree by the issue of a commission. Judgment-debtors objected on the ground that subsequent to the decree the easement of necessity ceased to exist by the decree-holder acquiring another way by the purchase of an adjacent property and therefore the decree has become unexecutable. That contention was rejected by the execution court which held that it cannot go behind the decree. Judgment debtors have come up in revision challenging that order.

2. Whether there was acquisition of an adjacent property after the decree by the decree-holder providing another access to the dominant tenement of the decree-holder itself is a moot point on a question of fact. A decision on that aspect and a consequent finding that the decree has become unexecutable by cessation of the easement of necessity declared by the decree are conditions precedent to accepting the objection that the decree has become unexecutable. The question for consideration is whether the execution court can go to that extent.

3. Easement








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