IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 76 of 2011()
1. K.M.ABRAHAM, KAREEKKATTIL HOUSE,
... Petitioner
2. ABRAHAM MATHEW, S/O.K.M.ABRAHAM,
3. PHILIP ABRAHAM, S/O.K.M.ABRAHAM,
Vs
1. M.NAZIR, NISHI GARDENS,
... Respondent
2. A.RASHEEDA, W/O.M.NAZIR,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :20/01/2011
O R D E R
S.S.SATHEESACHANDRAN, J
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R.S.A No.76 OF 2011
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Dated this the 20th day of January 2011
JUDGMENT
Defendants are the appellants. Suit was one for
prohibitory injunction. Dispute involved related to a pathway
described as item No.2 in the suit. The defendants have no right,
whatsoever, over that pathway and they are attempting to cut
open their western boundary wall to have access to the pathway
situate on the western side of their property was the case of the
plaintiffs for the discretionary relief of injunction. It is the further
case of the plaintiffs that flouting the order of interim injunction
passed by the court, an opening was made in the western
boundary wall of the defendant’s property and a gate was fixed
there. Negativing the contentions raised by the defendants to
resist the suit claim, the trial court granted a decree in favour of
the plaintiffs by which the defendants were also directed to
remove the gate and close down the opening made in the western
boundary wall of their property. Appeal preferred by the
defendants impeaching the correctness of the decree of the trial
court, was turned down by the lower appellate court after
reappraisal of the materials tendered in the case. Feeling
aggrieved, the defendants have preferred this Second Appeal.
R.S.A No.76 OF 2011 – 2 –
2. The respondents have filed a caveat, and, notice given,
they have entered appearance through counsel. At the time of
hearing, the learned counsel for the appellants/defendants
submitted that the defendants are conducting a kindergarten in
the building situate in their property and they require a breathing
period to comply with the decree concurrently passed by the two
courts below. Time up to 30th April is requested for by the counsel
for complying with the decree. The learned counsel for the
respondents/plaintiffs has no objection in providing the grace
period as requested for subject to filing of an undertaking by the
appellants before the execution court where steps have been
proceeded for executing the decree. Considering the submissions
made, time is granted till 30th April to the appellants/defendants
to comply with the directions in the decree subject to an
undertaking being filed by one among them on behalf of others
also, by way of an affidavit, unconditionally agreeing to comply
with the decree, on or before 30/04/2011. Undertaking as
indicated shall be filed by the defendants within a period of three
weeks. Execution of the decree shall be kept in abeyance initially
R.S.A No.76 OF 2011 – 3 –
for a period of three weeks, and if an undertaking is filed, as
directed, if shall not proceed till 30/04/2011.
Subject to the above directions, the appeal is dismissed.
Send a copy to the court dealing with the matter.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv