ORDER

Aggrieved by the order passed in I.A.No.28 in Ex.P.No.06/2008 dated 15.10.2022 by the Principal Civil Judge (Junior Division), Kundapura, defendant No.7 in the suit is before this Court.

2. Before considering the impugned order the factual matrix of the case are that the suit is filed for recovery of possession that is O.S.No.374/1999 and that came to be decreed on 24.07.2007. Then, in the year 2008, the decree holder has initiated the execution proceedings. The Executing Court had issued the delivery warrant on 05.11.2016. Basing on the earlier order dated 08.07.2016, when the bailiff has filed a report on 09.08.2016 stating that the property cannot be identified, I.A.No.14 is filed by the decree holder seeking for assistance of the surveyor to identify the suit schedule property. In that the Court below had passed an order that as could be seen from the materials placed before the Court shows that the Court observed that JDr.No.7 is fighting tooth and nail on the very same issue which is already decided by the predecessor in office. Even before the Court the very same point is argued. As such to set the point in rest some points are to be clarified which are highlighted by JDr.No.7. The objection filed by JDr.No.4 which is on the similar lines as that of JDr.No.7 was rejected on 28.03.2015. Then, the learned counsel for JDr.No.4 had filed Vakalath along with the counsel for JDr.No.7. As they have not questioned the order passed in favour of JDr.Nos.4(a) to (c). Now, they are trying it in another way of getting their counsel to file Vakalath for JDr.No.7 and trying to agitate their defence through JDr.No.7. The defence of the parties is one and the same. The Trial Court had observed that JDr.No.7 had adopted the written statement filed by defendant No.4 in the original suit. JDr.No.7 in spite of giving an opportunity before the Court, has not availed the opportunity and the Court below had observed that having not done the same before the Trial Court in the present Execution Petition JDr.No.7 cannot harp upon the decree passed by the Court stating that the opportunity was not afforded to them by the Court in the original suit. The only remedy that was available to JDr.No.7 is to prefer an appeal before the Appellate Court and to challenge the judgment and decree passed by the Court, but the same is not done by him. As such JDr.No.7 is also debarred from raising ferriferous objections when the decree of the Court is being executed by due process of law.

3. The Court had also observed that the bone of contention of JDr.No.7 is that the B schedule shown in the decree is not identifiable and as such the decree is not executable. It is the contention that the DHr in the present execution proceedings cannot take the assistance of the Court or the court amin to identify the B schedule property. It is his contention that the surveyor cannot be appointed to identify the property in the E.P. proceedings. It is also his contention that the building or the superstructure in the property in possession of JDr.No.7 cannot be demolished by use of any machines as the property is not identifiable. The DHr trying to take forcible possession of the property which is not the subject matter of the decree. Then, the Court had considered what is the B schedule property and it is observed by the Trial Court that the Court amin has to identify the 30 cents of land within the boundary shown in the B schedule. Learned counsel for JDr.No.7 argued that the surveyor’s plan referred in I.A.No.XIV is not produced before the Court for scrutiny nor the JDr, is aware of the said survey plan. Then, the Trial Court had considered that aspect basing on the judgment dated 24.07.2007 in O.S.No.374/1999 and also upon an order passed in TRI.No.3075/79-80 and TRI.No.3061/79-80 and the order passed in TRI.No.3065/78-79. The Trial Court had observed that when the judgment is read in between the lines it makes it abundantly clear that the DHr is referring to the pla