P N KURIAN Vs. THULASIDAS
HIGH COURT OF KERALA
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(1.) Decree-holder is the revision petitioner. Revision is filed against the order in E. A. No. 186 of 1998 in E. P. No. 131 of 1997 in O. S. No. 552 of 1992 on the file of the Munsiff's Court, Kottayam.
(2.) Suit was one for a declaration that item No. 2 is part of item No. 1 and it belongs to the plaintiff and also for a direction to remove the wall which has been put up by the defendant by trespassing into item No. 1. Suit was decreed ex parte. Decree holder filed E.P. No. 131 of 1997 and prayed for measuring out item No. 2 and for delivery of possession of the same to the decree holder with the help of a surveyor and commissioner and for removal of the wall at the defendants' cost and for other reliefs. In the execution petition, decree holder filed E. A. No. 186 of 1998 for appointment of a commissioner and surveyor for measuring and identifying item No. 2 and for other incidental reliefs.
(3.) Judgment debtor opposed the application on the plea that the same cannot be executed or a commission be issued since no plan is attached to the decree and that measurement and identification of item No. 2 cannot be granted at the execution stage. The Court below after considering the rival contentions held as follows :
"After going through the decree I am of the opinion that the decree does not give power to this execution Court to identify plaint item No. 2 by issuing a commission to that effect. As stated in the objection, it should have been done at the trial side. The decree is an ex parte decree. As the decree is silent about the identification of property at this stage, I am not inclined to allow this application. Hence dismissed." ;
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