Mrs. Poovamma Pai vs B. Babu

Ram Mohan Reddy, J.—The rejection of Petitioner''s I.A. No. 3 u/s 47 CPC by order dt. 6/10/2010 of the II Addl. Civil Judge, Mangalore, D.K., in Execution No. 54/06 is called in question in this petition.

The Petitioner instituted O.S.568/04 arraigning the Respondent as Defendant, whence the parties entered into a compromise following which a decree was drawn (according to the learned Counsel for the Petitioner) whereunder Petitioner was required to demolish the compound wall and reconstruct the compound wall leaving 1 foot in width in the plaint schedule property entitling the Defendant to that extent of land. The Petitioner having failed to comply with the judgment and decree, the Defendant sued execution, whence the Petitioner filed I.A. No. 3 u/s 47 CPC to hold an enquiry into the validity, discharge or satisfaction of the decree dt. 19/2/2005 in O.S. No. 568/04. In the affidavit accompanying the application, it was elicited that at the time of filing the compromise petition, the ''A'' schedule property was not measured and while executing the decree, the same has become inexecutable in terms of the measurements in the decree. It is further stated that in terms of Clause (vi) of the compromise decree, the Petitioner was directed to remove the northern side of the compound wall of plaint ''A'' schedule property towards east to west by 1 foot and that upon measurement it has become practically impossible to shift the said compound wall. In addition, it is stated that plaint ''A'' schedule property was shown to measure 3 cents and that at the time of execution, it was noticed that plaint ''A'' schedule property measures 2.88 cents with the shortage of 0.12 cents, which allegedly is included in the property of the Defendant. Lastly it is contended that the decree does not relate to demolition of any portion of the building as parties never intended to do so and therefore the decree is rendered inexecutable and hence the investigation. That application was opposed by filing statement of objections interalia denying the averments of the Petitioner. The court below having regard to the provisions of Section 47 and more so since the executing court could not go behind the decree to ascertain the allegations set out in the affidavit accompanying the application and hold an enquiry u/s 47 of CPC rejected the application by the order impugned.

Having heard the learned Counsel for the Petitioner and examined the order impugned, in my considered opinion, no exception can be taken to the reasons, findings and conclusions arrived at by the court below in the order impugned. If at all the Petitioner seeks to establish the fact that at the time of drawing the compromise decree, the suit ''A'' schedule property measured 2.88 cents and not 3 cents and therefore the compromise decree was not correct, it is open for the Petitioner to have that decree recalled or cancelled and not in an execution proceeding.

Petition devoid of merit is accordingly rejected.