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2012 Supreme(Ker) 250

High Court of Kerala
S.S. SATHEESACHANDRAN
T.J. Abraham & Others
Versus
Aleyamma Joy
O.P.(C).NO.348 OF 2012 (O)
Decided On : 15-03-2012

Advocates Appeared:
For The Petitioners:K.V. Sadananda Prabhu, Titus Mani, Advocate.
For The Respondents:A.Balagopalan, A.Rajagopalan, M.N. Manmadan, Advocates.

Headnote:Order found incomplete of being executed which has been passed by the court by stating the reasons the said order can be challenged by parties prescribed under law.

Judgment :

1. The original petition has been filed seeking the following reliefs:

i) to call for the records relating to Ext.P1 and direct the court below to comply with the orders of this Court in C.R.P.No.264/2006 dated 36.2010 and set apart a pathway over the property of the respondent, and in order to implement the same, direct the measurement of the properties of the parties within such time frame as this Hon'ble Court may direct.

ii. or in the alternative allow the petitioners to cross over the property through the pathway already existing and used by the property for long as is found in Ext.P2 plan.

iii. to grant such other and further reliefs in the interest of justice.

2. Petitioners are the plaintiffs in O.S.No.191 of 1991 on the file of the Munsiff's Court, Thiruvalla. That suit is one for declaration of the plaintiffs' right of easement over the properties of the defendant. Suit was decreed ex parte on 17.06.1993. Long after the passing of the ex parte decree, and after the death of the defendant against whom such decree was passed, his legal heirs applied for setting aside the decree moving such application with another for condoning the delay. The trial court dismissed both the applications. But in appeals, separately filed against the orders in the two applications, condoning the delay the ex parte decree was set aside directing trial afresh. After setting aside of such ex parte decree, the above case awaits fresh trial and disposal. During the pendency of the proceedings arising from the application moved for setting aside the ex parte decree, a plan was prepared showing properties of the plaintiffs and defendant and the nearby road. Ext.P2 is a copy of that plan. Plaintiffs had filed two revisions against the decisions of the appellate court allowing the application for setting aside the ex parte decree and condoning the delay, and in one of such revisions, the plan referred to above was also produced. On the submissions made by the counsel for the plaintiffs that there is no other way for the plaintiffs to reach their property and also the concession made by the counsel for the respondent (defendant) that for the time being and until disposal of the suit, access could be provided to the property of plaintiff along the northern extremity of the green shaded portion shown in the sketch appended to a revision this Court disposed the revisions affirming the judgment setting aside the ex parte decree and ordering fresh trial, with the following directions: "It is directed that respondent shall provide, until disposal of the suit, a way having a width of three feet starting from the concrete road on the east, going towards west along northern extremity of the green shaded portion in the sketch referred above and reaching property of petitioners. Respondent shall set out the said way within two weeks from this day failing which it will be open to the petitioners to get it done through the trial court of course subject to the result of the suit and without prejudice to the contentions of the parties hereto."

The directions as above provided as an interim measure for access to the property of the plaintiffs from the road, have not been complied with so far; the fault of which both parties attribute against the other. The plaintiffs have moved an application for a survey measurement of the property of the defendant to set out the pathway, which was objected to by the defendant. The learned Munsiff on such application has passed Ext.P1 order, and the challenge in the original petition is imputed against that order invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

3. At the time of hearing, it is fairly conceded by the learned counsel for the plaintiffs that Ext.P2 plan, which has been based to issue the interim directions has some mistakes. What are such mistakes is not germane for consideration at this stage as it has not been stated specifically in the original pe





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