IMPORTANT POINT
When the boundary is fixed. The owner of property is entitled to put up compound wall on the boundary, even without there being a decree perremitting him to put up a compound wall.

K.T. Sankaran, J.—The respondent filed O.S.No.1354 of 1999 on the file of the court of the Principal Munsiff of Eranakulam against the petitioner and others for fixation of boundary of the plaint schedule property and for other reliefs. The trial court decreed the suit in part as per the judgment and decree dated 30th June, 2007. The operative portion of the judgment reads as follows:

“In the result, the suit is decreed in part. The southern and eastern boundary of the plaint A schedule property is fixed as follows: The southern boundary is 10.1 line below the yellow shaded portion in Ex.C1 (a) plan. The eastern boundary of the A schedule property is 14.0 line on the eastern side of blue shaded portion in Cl (a) plan. Other reliefs sought in the plaint are refused. Plaintiff is entitled to get costs of the suit from the defendants. Ex. C1(a) plan shall be made part of the decree.”

2. Dissatisfied with the judgment and decree of the Trial Court, the plaintiff filed A.S.No.206 of 2007 on the file of the court of the District Judge, Ernakulam. The District Court allowed the appeal as per the judgment dated 7th August, 2008. The operative portion of the judgment reads as follows:

“In the result, appeal is allowed. No costs.

Decree for putting up of boundary granted by learned Munsiff is confirmed.

1st respondent/1st defendant is hereby directed to demolish the building portion on the north-eastern portion of the building to an extent of 1.6 sq. meter of plaint A Schedule property and the pillar and sunshade portion of the building encroaching into plaint schedule property within 45 days from the date of this judgment, failing which appellant/plaintiff is entitled to get it demolished through court of law.”

3. The respondent filed E.P.No.18 of 2010 to execute the decree. In column 10 of the Execution Petition, the mode in which the assistance is required contains two reliefs. Relief (a) reads as follows:

“(a) Without the assistance of this Hon’ble Court the decree holder cannot put up the boundary wall as such this Hon’ble Court may be pleased to depute the amin of this court to execute the decree with the assistance of the advocate Commissioner and surveyor in putting up walls on the southern boundary of the plaint A schedule which is the ‘10.1’ line below the yellow shaded portion in the exhibit C1[a] plan and the eastern boundary of the plaint A schedule property which is the ‘14.0’ line on the eastern side of the blue shaded portion in C1[a] plan.”

The relief (b) relates to the relief which was granted by the Appellate Court.

4. Against the appellate decree, the petitioner filed R.S.A.No.650 of 2010. When the respondent filed Execution Petition, the petitioner/judgment debtor moved an application for stay in the Second Appeal. This court passed an interim order dated 12th July, 2010 in the Second Appeal, which reads as follows:

“There will be an interim stay of execution of the decree subject to the condition that the respondents will be entitled to put up the boundary wall except the portion directed to be demolished by the mandatory injunction order passed by the court below. The respondents can put up the boundary except the protruding portion of the building of the appellant.”

5. The respondent/decree holder filed E.A.No.693 of 2010 before the Executing Court stating that in execution of the decree, a part of the work was carried out on 25.9.2010. However, without the amin and the Taluk Surveyor started to complete the work, they were restrained from doing so by the judgment debtor with the assistance of his henchmen. The decree holder sought the assistance of the police for executing the remaining work in execution of the decree.

6. The petitioner/judgment debtor filed detailed objection to E.A.No.693 of 2010. He contended that the application is not maintainable as no decree was granted permitting construction of the compound wall. The Executing Court overruled the contention raised by the judgment debtor, allowed th