2012 AIR CC 1921 (KER) ::AIR 2012 (NOC) (SUPP) 514 (KER.) ::(2012) 1 Ker LT 701 ::(2012) 1 Ker LJ 665

Kerala High Court

Hon'ble Judge(s): K. T. Sankaran , J

(A) Civil Procedure Code (5 of 1908) S. 47, O. 26, R. 9— Execution of ex parte decree — Appointment of Survey Commission for fixation of boundaries of decree schedule property — It was not case that decree was void or inexecutable — Therefore, refusal to appoint Survey Commission on ground that detailed enquiry regarding fixation of boundary cannot be carried out in execution proceedings, improper — Executing Court has power to fix boundaries after ascertaining same as per survey commission {" Where the ex parte decree in respect of relief for fixation of boundary granted by trial Court was clear and unambiguous, that the judgment-debtors did not appear and therefore, the trial Court did not consider the merits of the case in detail was not a ground to hold that the decree could not be executed. The gist of the decree was to fix the boundary on the eastern and southern sides of the plaint schedule property. In execution of the decree, the same had to be done by fixing the eastern and southern boundaries. This exercise could have been done by the trial Court before granting the decree. However, the Court did not insist on the decree holder to do so, particularly, since the judgment-debtors were ex parte. The decree-holder could not be blamed for not taking out a Survey Commission at the trial stage in the absence of any written statement and in the absence of appearance by the judgment-debtors. Whatever may be the dec....