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2025 Supreme(Online)(Ker) 58570
IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.R.RAVI, J
UNNI AGED 63 YEARS S/O KUTTANKULANGARA CHENNAN – Appellant
Versus
VILASINI W/O KANDAKULANGARA APPUKUTTAN – Respondent
OP(C) NO. 899 OF 2018
For the Appellants/Petitioners: SHRI.G.SREEKUMAR (CHELUR)
For the Respondents: SRI.RAJIT, SRI.V.V.JOY
Proper measurement objections do not equate to unwillingness to accept delivery of possession.
Headnote:This judgment addresses the execution of a decree from O.S.No.45 of 2010. The petitioner contends improper delivery of possession, citing failure in previous execution attempts. The court found merit in the petitioner's objection to the measurement. The execution petition was mismanaged; thus, it allows the appeal, setting aside the lower court's order. It directs resumption of the execution process with proper assistance.
| Table of Content |
|---|
| 1. summary of the facts regarding the execution of the decree. (Para 1) |
| 2. court's reasoning acknowledges the petitioner's right to object to measurement. (Para 2) |
| 3. court directs resumption of execution process. (Para 3) |
JUDGMENT
The petitioner is the decree holder in O.S.No.45 of
2010 of Munsiff Court, Wadakkanchery. Ext.P3 is the judgment in the suit. As per Ext.P3 the defendants have been directed to put the plaintiff in possession of the yellow shaded portion in Ext.C2(a) plan, removing the concrete posts or portion of the concrete basement of the posts and fencing which comes within the said yellow shaded portion. E.P.No.209 of 2012 filed for that purpose was closed, noting that the delivery has been effected. According to the petitioner, there was no effective delivery and hence E.P.No.241 of 2013 was filed. The said execution petition was the subject matter of O.P(C).No.129 of 2015 before this Court, which was disposed of by Ext.P5 judgment. This Court directed the execution court to appoint a Surveyor instead of a Village Officer to assist the Amin to effect delivery and fix a day for it and to dispose of the matter expeditiously. Thereafter, the Amin attempted to deliver the property but returned the warrant without effecting delivery. Ext.P6 contains a noting made by the Amin while returning the warrant, that even though the area covered by the yellow portion Ext.C2(a) plan was identified and delivery was attempted, the petitioner objected stating that the measurement was not proper. The report of the Amin was on 12.04.2017 and on the very same day, the execution court passed Ext.P7 order wherein it is stated that Amin had reported that the decree holder was not ready to take delivery and hence the execution petition is dismissed for default. Ext.P7 has been challenged in this original petition.
2. It is submitted that there was no default on the part of the petitioner and the petitioner had only objected to the measurement. It is submitted that he is entitled to object to the measurement and merely because an objection has been raised, it cannot be concluded that the decree holder is not willing to take delivery. I find considerable force in the argument. Ext.P7 order on the face of it is erroneous. Admittedly, there has been no delivery. As such, the court could not have closed the execution petition merely because there is an objection raised to the manner in which the measurement was made. The court should have taken note of the fact that the second execution petition was entertained because there was no proper delivery earlier and this Court had also specifically directed the manner in which the measurement should be done.
3. The counsel for the respondents submitted that the matter is getting delayed unnecessarily on frivolous complaints being made by the petitioner. It is submitted that the delivery need not be adjourned on frivolous reasons.
The original petition is hence allowed. Ext.P7 is set aside. There will be a direction to the execution court to take back the execution petition on file and direct the Amin to execute the decree with the help of the Surveyor. If necessary, the court may also depute an Advocate Commissioner, preferably the Advocate Commissioner who prepared Ext.C2(a) plan in whose presence the execution can be carried out, provided an application for that purpose is filed by the petitioner. The parties to appear before the execution court on 06.01.2026.
