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Judgment
Srinivasan, J.—Though this has been posted along with several revision petitions, I find, after hearing counsel, that this relates to a separate
dispute with reference to a particular item and this need not be tagged on to other revision petitions. The arguments in this civil revision petition are
concluded though, the arguments in the other revision petitions have been partly heard.
The revision petition is filed by respondents 6 to 12 on the execution proceedings, out of which this petition arises, who are the legal heirs of A.
Rangasamy, who was one of the partners of Balasubramania Foundry. It is not necessary to narrate the facts leading to the decree in detail. Suffice
it to say that there was an arbitration and a Retired Judge of this Court by name Justice C.J.R. Paul was nominated to be the Arbitrator by the
Supreme Court of India. He submitted an Award on 3.4.1985, which was made into decree by the Supreme Court on 11.8.1987. Under the
Award, an extent of 50 cents in Survey Nos. 55/2A and 55/2B in Gundanpalayam Village and another 50 cents in Survey No. 272/1 Ain
Sankanur village, were allotted to A. Rangaswamy, who is the predecessor-in-title of the petitioners herein. The relevant part of the Award reads
as follows:
The women Partners Srimathi Hamsaveniammal and her three daughters, who together are entitled to a 2/5 share in the net assets of the firm, have
represented through their valuation statement dated 2.3.1985 that they are not prepared nor are they in a position to contribute money towards the
full value of any of the immovable properties. Sri Rangaswami has requested that he may be allotted 50 cents in any portion of the land S.F. No.
272/A of Sankanur Village 2.60 acres in extent, and another 50 cents in any portion of the land in S.F. No. 55/2A and 2B in Goundanpalayam
Village, 2.37 acres in extent, and that if he is allotted 50 cents, in the western most portion of the former land, the value of that portion may be
fixed at a lower figure than the rest of the land, since the approach to the portion is partly obstructed at present by encroachments. Bearing these
requests in mind, I allot to Sri Rangaswami, 50 cents in the western most portion of S.F. No. 272/1 A in Sankanur Village of the total extent of
2.60 acres, and I allot the rest of the land measuring 2.10 acres, jointly to Srimathi Hamsaveniammal and her daughters. In S.F. No. 55/2A and
2B of Goundan Palayarn village of the total extent of 2.37 acres, I allot to Sri Rangaswami 50 cents in the southern most portion of that land and I
allot the rest of that land measuring 1.87 acres in extent to Sri Palaniappan. I allot to Sri Duraiswarni the godown site and building at Door No. 3,
Seth Narayandas Layout Coimbatore. I have already fixed the value of the 2.37 acres in S.F. Nos. 55/1A and 2B at Rs. 15,00,000. The value of
the 50 cents allotted to Sri Rangaswami in that"" land at that rate works out to Rs. 3,16,455.50. The value of the 1.87 acres allotted in that land to
Sri Palaniappan works out to Rs. 11,83,545. The total value of the 2.60 acres in 272/1A in Goundanpalayam Village as fixed by me is Rs.
24,00,000. The value of 50 cents in that land works out to Rs. 4,61,583. Since Sri Rangaswami has been allotted 50 cents in the Western most
portions, the approach to which portion is partly obstructed by encroachments, I fix the value of the 50 cents allotted to Sri Rangaswami in that
land at Rs. 4,60,000. and the value of the portion allotted to the women Partners at Rs. 19,40,000.
Thus, the Arbitrator allotted a specific portion measuring 50 cents each in the said survey numbers. It has to be noted that Rangasamy prayed
for allotment of any portion in the said survey numbers. The Arbitrator has also taken note of the fact that there were encroachments and the
access to the portions were partly obstructed thereby while fixing the value of the properties.
In the course of execution proceedings a Commissioner was appointed to implement the Award. He submitted a report on 18.6.1993. In so far
as these lands are concerned, the Advocate Commissioner suggested that the allotment of properties would be equitable if the portions are
realigned in a different manner, but he has taken care to mention that it could be done only if the parties agreed. To make it very clear, the
Commissioner suggested that the extent of 50 cents in Survey Nos. 55/2A and 55/2B which were in the southern most portion could be re-aligned
in such manner that it would form part of the northwestern portion and similarly the extent of 50 cents in Survey No. 272/1A could be re-aligned
so as to form part of the south-eastern portion of the said survey number. The reasoning for the said suggestion was that there was no direct
access to the two portion from the public roads in view of the encroachments blocking the entrance. The suggestion was not agreed to by the
parties. The executing court could not therefore, accept the same but instead the executing court passed an order realigning the two portions in
such a manner that the lands required for having a passage to the said portions allotted to the petitioners herein, could be had directly from the
public road, being Mettupalayam Road and Burial Ground Road respectively and that the said extent covered by the pathways would form part of
the total extent of 50 cents in each survey number allotted to the petitioners herein.
The grievance of the petitioners is that the executing court has now reduced the extent allotted to them by the decree. It is contended that when
an extent of 50 cents in each survey number has been allotted to the petitioners, that should be kept intact and the court must see that an access is
provided to the petitioners too reach the said extent. According to learned counsel, the court could do so in exercise of its equitable jurisdiction.
Alternatively, it is argued that if the parties do not agree to such a course the properties must be auctioned between the parties and whoever pays
the higher price must be allotted said property. In that connection, reliance is placed on Palanikumar Pillai Vs. Palani Kumar Pillai and Others, . I
cannot accept this contention. The said judgment was rendered by me at the stage of second appeal, which arose out of a final decree in the
partition suit. As the decree was the subject matter of the appeal, I could effect an arrangement between the parties by applying that principle. But
in a case where the decree has become final and the matter is in the stage of execution, the decree cannot be suspended by the executing court in
any manner. The duty of the executing court is only to implement the decree as it is and not to change the properties allotted under the decree to
the various parties. The purpose of the Commissioner is only to locate the same and demarcate them.
It is rightly pointed out by learned counsel for the respondents that it was the petitioners'' predecessor-in-title, who wanted, the specific portions
to be allotted to him and he voluntarily told the Arbitrator that any portion in the two survey numbers could be allotted.. When the Arbitrator
actually allotted to him, the western-most portion in Survey No. 272/1 A and southern most portion in Survey Nos. 55/2A and 55/2B he was not
aggrieved thereby. He was fully aware that there were encroachments obstructing the access to the two portions. In spite of that, allottee did not
challenge the correctness of the Award and allowed the same to become decree. It is argued that after a decree is passed, it is not open to the
heirs of the allottee to challenge the allotment before the executing court. The contention is well founded and I accept the same.
It follows, therefore, that the executing court has exceeded its jurisdiction in making the re-alignment or re-allotment of the properties by
permitting the petitioners to have a pathway on the portions allotted to the other sharers even though the extents of the pathways are sought to be
deducted from the extents allotted to the petitioners. Now. it is clear that none of the parties is satisfied with the arrangement made by the
executing court. While the petitioners are aggrieved because the total extent allotted to them is reduced by about 20 cents being taken away by the
pathways the other parties are aggrieved because the pathway runs through their lands and to that extent, the lands allotted to them have become
useless to them though they are given 20 cents elsewhere in the portions allotted earlier to the petitioners.
As I have held that the executing court has no jurisdiction to change the allotment made by the decree, the order of the executing court has to be
set aside and it is hereby set aside. The decree passed by the Supreme Court allotting the Western most 50 cents in the Survey No. 272/1A and
southern most 50 cents in Survey Nos. 55/2A and 55/2B to A. Rengasamy, will have to be implemented as it stands and consequently the
petitioners will be entitled only to those portions. The executing court is directed to demarcate these portions through an Advocate Commissioner
so that the petitioner can take possession of the same. The civil revision petition is allowed though the prayer of the petitioner is not granted. The
executing court shall carry out the directions confined herein in the very same execution proceedings without insisting upon a fresh execution
proceedings being filed by any of the parties. Parties will bear their respective costs.