The decree in O.S. No. 1476/1985 on the file of the Court of the IInd Additional Munsiff of Ernakulam is to the following effect:-
i) The defendants or their men shall not obstruct the plaintiff from constructing a fence along the boundaries of the plaint schedule property.
ii) The defendants shall not either use or alter the cattle shed situated in the plaint schedule property.
2. The decree schedule property has been sufficiently identified pursuant to the directions contained in the judgment in O.P.(C). No. 2307/2011. The execution court has now found that the building in the decree schedule property was earlier a cattle shed pursuant to the remand in the judgment in O.P.(C). No. 625/2014. It is reported that a compound wall has already been constructed and what remains is the actual delivery of the decree schedule property. The assignee under the decree holder O.P.(C) No. 2004 of 2014 2 who is the respondent in this original petition seeks delivery of the structure in E.A. No. 133/2013 in E.P. No. 365/2010 in O.S.No. 1476/1985 filed under Order XXI Rule 32(5) of the Code of Civil Procedure.
3. There is no dispute to the fact that there is a structure within the four boundaries of the decree schedule property. There is also little dispute about the identification of the four boundaries of the decree schedule property. The finding of the Court below that the structure within the four boundaries was earlier a cattle shed and now converted into a residential building is rested on evidence. The Advocate Commissioner deputed in O.P.(C).No.4636/2013, the assignee under the decree holder as well as the judgment debtors have been examined in the execution court.
4. The execution court is well competent to effect delivery of the property even if the decree is one for injunction simplicitor. That is so in view of the peculiar facts of this case and is also supported by Krishnan Namboodiri v. Unnikrishnan Namboodiri [2005(3) KLT 556]. The assignee under the decree holder should be enabled to enjoy the decree for which vacant possession of the structure occupied by the O.P.(C) No. 2004 of 2014 3 judgment debtors may be necessary. I am not prepared to hold that the impugned order suffers from any error of jurisdiction warranting interference in this supervisory jurisdiction.
5. I however hasten to add that the suit is one for injunction only wherein emphasis is on the factum of possession. Any observation in the judgment in the suit or in the judgment disposing of the original petitions arising from interim orders are in the context of possession only. Nothing disables the petitioners who are the judgment debtors in the injunction decree from filing a fresh suit based on title. The question of title to any part of the decree schedule property is left open as the suit is one for injunction simplicitor.
The Original Petition is dismissed subject to the above observation.
V.CHITAMBARESH JUDGE DCS