A decree remains executable even if the appellate decree omits a property schedule, as long as the original plaint contains the necessary property description.

JUDGMENT

Confronted with Ext.P6 order passed in E.P. No.33/2019 in O.S No.567/1993 of the Court of the Munsiff, Muvattupuzha, the judgment debtors 3 and 8 in the Execution Petition have filed the original petition. The respondent is the decree holder.

2. The relevant facts leading to Ext.P6 order in a nut-shell are:

(i) The respondent had filed O.S. No.567/1993 before the court below, against the petitioners’ predecessor in interest, late Bhaskaran, for a decree of permanent prohibitory injunction.

(ii) Bhaskaran had filed O.S. No.578/1993 before the court below against the respondent for a decree of declaration and consequential injunction.

(iii) The suits were consolidated and jointly tried.

(iv) The Trial Court dismissed the suit filed by the respondent and decreed the suit filed by Bhaskaran.

(v) The respondent challenged the decrees passed in the two suits by filing A.S No.22/1998 and A.S No.21/1998 before the Court of the Subordinate Judge, Muvattupuzha (Lower Appellate Court), and the appeals were allowed by way of remand.

(vi) After remand, the Trial Court dismissed both the suits.

(vii) Then the respondent filed A.S No.121/2003 and the legal representatives of Bhaskaran filed A.S No.82/2006 before the Lower Appellate Court.

(viii) The Lower Appellate Court dismissed the appeal filed by the legal representatives of Bhaskaran and allowed the appeal filed by the respondent. (ix) The legal representatives of Bhaskaran filed R.S.A No.991/2009 and 999/2009 before this Court.

(x) In the mean time, the respondent laid the decree in A.S.No.121/2003 to execution. (xi) The petitioners resisted the Execution Petition by filing Ext.P5 objection. They contended that the Execution Petition is not maintainable as the appeal decree does not contain the property schedule.

(xii) The court below, by the impugned Ext.P6 order, rejected the objection of the petitioners. Ext.P6 is erroneous and wrong. Hence the original petition.

3. Heard; Sri.C.Dilip, the learned counsel appearing for the petitioners on admission.

4. The question is whether there is any illegality in Ext.P6 order.

5. The suit was dismissed by the Trial Court before and after the remand.

6. In A.S. No.121/2003 filed by the respondent, the Lower Appellate Court accepted the case of the respondent and decreed the suit as prayed for.

7. Nonetheless, in the decree of the Lower Appellate Court, the schedule of the property was omitted to be included. Thus, the petitioners contended that the decree is not executable.

8. I find the above contention to be untenable, especially in view of the principles laid down in Section 37 of the Code of Civil Procedure , on the principle of merger of decrees.

9. Undisputedly, the plaint and decree of the Trial Court, even though the suit was dismissed, contains the description of the plaint schedule property. Thus, a co- joint reading of the decrees of the Trial Court and the Lower Appellate Court gives a clear description of plaint schedule property.

10. The court below has rightly held that the decree does not become unexecutable because the decree of the Lower Appellate Court does not contain the schedule of the property. I do not find any error of jurisdiction in the impugned order repelling the objection of the petitioners, warranting interference by this Court under Article 227 of the Constitution of India.

The original petition is devoid of any merits and is hence dismissed.