High Court Kerala High Court

Hotel Megha (Mullakariyil … vs E.K.Issac on 17 November, 2008

Kerala High Court
Hotel Megha (Mullakariyil … vs E.K.Issac on 17 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 33862 of 2008(F)


1. HOTEL MEGHA (MULLAKARIYIL TOURIST HOME)
                      ...  Petitioner
2. M.J.THOMAS, S/O.JOSEPH

                        Vs



1. E.K.ISSAC, S/O.P.B.KURIAN
                       ...       Respondent

                For Petitioner  :SRI.JOHNSON MANAYANI

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :17/11/2008

 O R D E R
              K.P.BALACHANDRAN, J.
          ------------------------------------------------
                 W.P.C. No.33862 of 2008
          ------------------------------------------------
         Dated this the 17th day of November, 2008

                         JUDGMENT

Petitioners are defendants in a suit

filed by the respondents for recovery of a

portion of the property allegedly encroached

upon by the petitioners. The suit was decreed.

Appeal filed by them was dismissed by the

first appellate court and finally by Ext.P1

judgment in RFA.1028/03 the concurrent verdict

was upheld and this Court dismissed the RFA in

limine. The matter is not taken to the Apex

Court. On the other hand, petitioners have

filed Ext.P5 suit before the Sub Court,

Ernakulam and sought for an injunction by

filing Ext.P6 application restraining the

respondent/decree holder in O.S.1203/97 of the

Munsiff’s Court, Ernakulam from enjoying the

plaint ‘B’ schedule property as according to

the petitioners, the respondent has

W.P.C. No.33862 of 2008 -2-

unauthorisedly encroached and occupied plaint

‘B’ schedule property. The claim so advanced

over ‘B’ schedule property is submitted to

have been not advanced in O.S.1203/97 and the

petitioners have lost their case up to this

Court as evidenced by Ext.P1. The petitioners

cannot be heard to contend against the

adjudication which has gone against them and

restrain execution of the decree obtained by

the respondent after a long legal fight up to

this Court in O.S.1203/97 aforesaid. There is

hence, no merit and the Sub Judge has

appropriately ordered only notice on Ext.P6

injunction petition. The prayer not to

demolish the alleged illegal construction as

per judgment and decree in O.S.1203/97 on the

file of the Munsiff’s Court, Ernakulam

confirmed in Ext.P1 judgment and to declare

that petitioners are entitled to an ex parte

interim injunction as prayed for vide Ext.P6

W.P.C. No.33862 of 2008 -3-

application is not at all reliefs which this

Court can countenance as the entire matter has

been adjudged concurrently up to this Court as

evidenced by Ext.P1 and the petitioners who

were defendants in the said suit and who

resisted the suit raising all contentions

available to them cannot restrain execution of

the decree so obtained by the respondent, by

filing a fresh suit. Counsel for the

petitioners submit that before the execution

court the case stands posted to tomorrow to

have the decree executed by deputing an Amin

demolishing the portion of land trespassed

upon by the petitioners as found in that suit

and to demolish the constructions effected

therein. He submits that an opportunity be

given to the petitioners to demolish the

unauthorised constructions by themselves. They

may do so if they so want but at the same

time, Amin or Commissioner may have to be

W.P.C. No.33862 of 2008 -4-

deputed to ascertain that the entire property

allowed to be got recovered from the

petitioners is delivered over to the decree

holder after demolishing the constructions

effected therein. However, to effectuate the

demolition and removal by themselves the

petitioners are granted two days time and

delivery shall stand adjourned to 21/11/08.

The petitioners shall produce a copy of this

judgment forthwith before the execution court

with notice to decree holder/respondent as

this writ petition is being disposed of

without notice to the respondent.

2. This Writ Petition is disposed of with

the above directions.

K.P.BALACHANDRAN,
JUDGE
kns/-