The main legal point established in the judgment is that the public law remedy under Article 226 of the Constitution of India cannot be invoked for execution of a decree passed by a competent civil court when an effective mechanism is provided under Order XXI of the Code of Civil Procedure, 1908.

JUDGMENT :

VIJU ABRAHAM, J.

1. The above writ petition is filed challenging Ext.P8 order issued by the 4th respondent and for a consequential direction to respondents 3 and 6 to fix survey marks on the boundaries of plot B described in Ext.P3 survey plan prepared by the 5th respondent, if required, after seeking assistance of the police in case of any obstruction by anyone including respondents 7 and 8.

2. Brief facts necessary for the disposal of the writ petition are as follows:

Petitioner’s late husband has obtained 3.24 Ares (8 cents) of land by virtue of a Will executed by his mother which was registered as document no. 180/1998 of SRO Thripunithura. Petitioner’s husband died on 10.12.2007 and thereafter on an application submitted by the petitioner and her children, the 3rd respondent has mutated the property in their name as per Ext.P1 order. Pursuant to the same, basic land tax in respect of the above said property was accepted from them as is evident from Ext.P2 receipt. While so, respondents 7 and 8 who are brothers of the petitioner’s late husband attempted to trespass into the aforesaid property whereby the petitioner and her children were constrained to approach the Sub Court, North Paravur by filing O.S. No. 524 of 2008 against them seeking a decree for fixation of boundaries of abovesaid 3.24 Ares of land which is described as plaint B schedule property therein. Pending the suit, a survey commission was taken out and the 5th respondent visited the property and demarcated its boundaries and also prepared Ext.P3 survey plan and on measurement, a small extent of land was additionally found over and above the land described in the Will and the said extent of land was distributed equally among the parties and as such each party got additional 0.23 Ares of land. Subsequently, the suit filed as O.S. No. 524 of 2008 was decreed on the basis of a compromise wherein respondents 7 and 8 who are the defendants in the suit have agreed to decree the suit in accordance with Ext.P3 survey plan and the Additional Sub Court, North Paravur disposed of the suit as per Ext.P4 judgment based on the said compromise. The 4th respondent thereafter effected mutation as per Ext.P5 with respect to the additional 0.23 Ares of land in favour of the petitioner and her children and basic tax in respect of the same was accepted as is evident from Ext.P6 receipt. Subsequently, the petitioner approached the 3rd respondent with Ext.P7 application to fix survey marks (survey stones) on the boundaries of plot B described in Ext.P3 survey plan. Petitioner contends that respondents 3 to 5 are statutorily obliged to do physical demarcation of the boundaries of plot B described in Ext.P3 survey plan which is prepared by the 5th respondent inasmuch as respondents 7 and 8 have accepted the said plan and consequently Ext.P4 judgment was passed based on the compromise. But the said application was rejected by the 4th respondent as per Ext.P8 order stating that the request now made by the petitioner is for execution of the terms of the decree and therefore they should approach the execution court by filing an appropriate petition for execution of the decree. It is in the said circumstance that the petitioner has approached this Court.

3. Petitioner submits that Ext.P3 survey plan is prepared by the 5th respondent and all parties to the suit have agreed to accept the same and consequently Ext.P4 judgment was passed by the Sub Court, North Paravur. The present request of the petitioner before the 4th respondent is to fix survey marks on the boundaries of plot B in Ext.P3 survey plan. Since there is no dispute by either side regarding Ext.P3 survey plan and that Ext.P4 judgment of the competent civil court has attained finality, the petitioner cannot be asked to approach the execution court for the purpose of demarcation of the property.

4. A detailed counter affidavit has been filed by the 7th respondent wherein a preliminary objection was raised that the writ petit