JUDGMENT

The suit for declaration of easement right over the plaint 'D' schedule way and for mandatory injunction for removal of a gate installed at the entrance of the plaint 'D' schedule way, was decreed by the first appellate court in the following terms:-

“Suit is decreed. It is hereby declared that the plaintiffs have got right of easement by grant over the plaint D schedule way. The defendant is directed to remove the gate installed at the entrance of the plaint D schedule way from the public road on the western road within three months from the date of the decree, failing which the plaintiffs will be entitled to remove the gate through court and to recover the expenses incurred thereon from the defendant. Further the defendant and all persons claiming under or through her are restrained permanently from causing any obstruction to the user of plaint D schedule way by the plaintiffs.”

2. The decree was affirmed by this Court in RSA

74/2019.

3. The decree holder-respondent sought for execution as per EP 46/2019. The petitioner- judgment debtor filed objections contending that, subsequent to the decree passed in the suit, the decree holder encroached a portion of the plaint 'D' schedule way, whereupon the petitioner-judgment debtor has filed a suit as OS 122/2019 for mandatory injunction to remove the encroachments. According to the petitioner-judgment debtor, the subject matter of the decree has ceased to exist and the decree could not be executed.

4. I am unable to accept the contention of the judgment debtor-petitioner. Admittedly the decree for mandatory injunction, for removal of the gate placed at the entrance of the plaint 'D' schedule way was not obeyed by the judgment debtor. It is seeking enforcement of the decree that the execution petition is filed. It has nothing to do with the suit presently filed by the judgment debtor. Admittedly the gate is still in existence.

As per the decree sought to be enforced, the gate is liable to be removed. The contention of the judgment debtor lacks merit.

Original petition fails and is accordingly dismissed.

Sd/-

SATHISH NINAN JUDGE kns/-

//True Copy// P.S. to Judge APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ABOVE JUDGMENT DATED

22.08.2015 IN OS 137/2013 OF THE HON'BLE MUNSIFF COURT, MAVELIKARA.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED

04.01.2019 IN AS 83/2017 OF THE HON'BLE SUB JUDGE, MAVELIKARA.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED

11.02.2019 IN RSA 94/2019.

EXHIBIT P4 TRUE COPY OF THE PLAINT IN OS 122/2019 BEFORE THE HON'BLE MUNSIFF'S COURT, MAVELIKARA.

EXHIBIT P5 TRUE COPY OF THE COMMISSION REPORT DATED 06.04.2019 IN OS 122/2019 ALONG WITH THE SKETCH.

EXHIBIT P6 TRUE COPY OF THE EP NO.46/2019 IN OS

137/2013.

EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE PETIITONER IN EP NO.46/2019 IN OS

137/2013.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 07.12.2020 IN EP NO.46/2019 IN OS 137/2013.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1A A TRUE COPY OF THE DECREE DATED

04/01/2019 PASSED BY THE SUB COURT,MAVELIKARA IN A.S.NO.83/2017.

EXHIBIT R1B A TRUE COPY OF THE COMPROMISE PETITION FILED BEFORE THIS HON'BLE COURT IN SA.NO.171/1972.

EXHIBIT R1C A TRUE COPY OF THE JUDGMENT DATED

17/07/1972 OF THIS HON'BLE COURT IN S.A.NO.171/1972.

EXHIBIT R1D A TRUE COPY OF THE RECEIVER'S REPORT AND PLAN IN OS.NO.,393/1966 OF THE MUNSIFF'S COURT, MAVELIKKARA.

EXHIBIT R1E A TRUE COPY OF THE RE SURVEY PLAN OF FIELD NO.62 OF MAVELIKARA VILLAGE.

EXHIBIT R1F A TRUE COPY OF THE THANDAPER EXTRACT REGISTER OF THE WAY IN RE-SURVEY NO.62/15 OF MAVELIKARA VILLAGE.

EXHIBIT R1G A TRUE COPY OF THE THANDAPER EXTRACT OF THE LAND IN RE-SURVEY NO.62/14 OF MAVELIKARA VILLAGE.

EXHIBIT R1H A TRUE COPY OF THE PLAINT IN O.SNO.137/2013 OF THE MUNSIFF'S COURT, MAVELIKARA.

EXHIBIT R1I A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.NO.137/2013 OF THE MUNSIFF'S COURT, MAVELIKARA.

EXHIBIT R1J A TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.137/2013 OF THE MUNSIFF'S COURT, MAVELIKARA.

EXHIBIT R1K TRUE COPY OF WILL 65/2014/III OF