JUDGMENT

The original petition is filed challenging the order dated 8.6.2022 in EA No.105/2022 in EP No.23/2015 in OS No.24/1980 (Ext P10) of the Court of the Subordinate Judge, Mavelikkara, inter-alia, declining to adjudicate on the identity of the decree schedule property.

2. The skeletal facts relevant for the determination of the original petition are: the petitioners are the additional judgment debtors 7 to 10 in the above execution petition, which is filed by the respondents to execute the decree passed in OS No.24/1980. The respondents have put the decree to execution for getting the sale deed in respect of 3 cents of the decree scheduled property executed in their favour. The respondents have wrongly described the decree scheduled property as a compact plot of 17 cents. The property is lying separately as 14 cents in Survey No.793 and 3 cents in No.794 in Kayamkulam Village. The original 1st defendant obtained the property. When the respondents attempted to forcefully take possession of the property, on the strength of a draft sale deed, the petitioners had approached this Court by filing O.P.(C)No.1469/2021. This Court dismissed the original petition by Ext.P4 judgment, holding that the decree holders would bear the risk. Thereafter, Ext.P5 sale deed was executed describing the property of 3 cents to be comprised in Survey No.794/1, which corresponds to Re-Survey No.169 in Block No.228. Immediately, the petitioners filed Ext.P8 application, under Sections 47, 151 and Order XXVI of the Code of Civil Procedure (in short ‘Code’), to identify the decree scheduled property and demarcate the same from the adjacent property belonging to them, before delivery could be effected. But, the court below, by the impugned Ext.P10 order, dismissed Ext.P8 application. Ext.P10 is erroneous and unsustainable in law. Hence the original petition.

3. Heard; Sri.George Varghese Perumpallikuttiyil, the learned counsel for the petitioners.

4. The point is whether there is any illegality in Ext.P10 order.

5. Ext.P1 decree has been concurrently confirmed by this Court and the Honourable Supreme Court of India in favour of the plaintiff in the suit. Thereafter, the sale deed in respect of 14 cents of land comprised in Survey No.793/1 was executed in favour of the decree-holder on 29.01.2003, and possession was handed over. Later, the decree-holder died, and the respondents were impleaded as the legal representatives of the deceased decree holder. The respondents filed E.P.No.23/2015, to also get the

3 cents of land in Survey No.784/1 executed in their favour. In the said execution petition, the legal representatives of the original judgment debtors 1 and 2 have been impleaded as additional judgment debtors 3 to 6 and 7 to 10, respectively. They contend that the decree schedule property is not identifiable. Therefore, the execution petition is not maintainable. However, the court below proceeded further by approving the draft sale deed. Even though the draft sale deed was challenged before this Court, by Ext.P4 judgment, this Court dismissed the original petition.

6. Then, the petitioners have filed Ext.P8 application, under Sections 47 and 151 and Order XXVI of the Code, to identify the decree scheduled property and demarcate the same from the adjacent property belonging to the petitioners before delivery. A reading of the Ext.P8 shows that, although Section 47 has been subsequently inserted, the prayer is to depute an Advocate Commissioner to identify the property. The respondents have filed Ext.P9 objection to Ext.P8. Nevertheless, the court below, by the impugned Ext P10 order, has dismissed the application by observing as follows:

“5. xxx xxx xxx xxx. At any rate, such an application has no scope in this stage, though it may be relevant during the time of delivery of possession”.

7. The learned counsel appearing for the petitioners argued that the property will be delivered immediately. Therefore, this Court may interdict the execution proceeding