IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 247 of 2008()
1. THILAKAN, S/O.KARINCHENA NARAYANAN
... Petitioner
Vs
1. RADHA, W/O.PUVATHUR KADAVIL SIDHARTHAN
... Respondent
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent :SRI.P.V.CHANDRA MOHAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated :02/03/2009
O R D E R
K.T.SANKARAN, J.
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C.R.P.No.247 of 2008
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Dated this the 2nd day of March, 2009
ORDER
One of the judgment debtors challenges the order dated
16th February 2008 in E.P.No.178 of 2005 in O.S.No.126 of 1981
on the file of the court of the Munsiff of Chavakkad. The decree
was passed in favour of the respondent for a permanent
prohibitory injunction restraining the defendants from
obstructing the plaintiff in constructing boundaries on B
schedule property as shown in Ext.C2 plan. The decree has
become final. The decree holder filed E.P.No.178 of 2005 for
deputing Amin for construction of a compound wall as per the
decree.
2. The petitioner contended that the decree is not
executable. Relying on Kadiyammakutty Umma vs. Karappan
(1988 (1) KLT 421) and Ajayakumar vs. Damayanthi (2004
(2) KLT 48), the court below held that the executing court has
jurisdiction to enforce the decree for prohibitory injunction as
well. Going by the decree, the decree holder is entitled to the
CRP 247/2008 2
reliefs claimed in the Execution Petition. Before the executing
court, the decree holder was examined. Considering the
evidence adduced by the decree holder, the court below thought
that it is necessary to depute the Amin for construction of the
compound wall in terms of the decree. The judgment debtors did
not adduce any evidence. The contention of the petitioner, who
is one of the judgment debtors, is that the Execution Petition is
barred by limitation. It is contended that the decree was passed
on 28.3.1983 and the Execution Petition was filed beyond 12
years. The execution petition was filed on 16.3.2005.
3. The contention of the petitioner that the Execution
Petition barred by limitation is without substance. Article 136
of the Limitation Act provides for a period of 12 years for filing
an application for execution of any decree. The period begins to
run when the decree or order become enforceable. In the 3rd
column of the schedule to the Limitation Act, against Article 136,
there is a proviso which states that an application for the
enforcement for execution of a decree granting a perpetual
injunction shall not be subject to any period of limitation. The
contention raised by the petitioner is therefore not sustainable.
CRP 247/2008 3
4. The court below has considered all the contentions
raised by the petitioner. The finding of the court below is legal
and proper. No grounds are made out for interference under
Section 115 of the Code of Civil Procedure.
5. The learned counsel for the petitioner submitted that
if the compound wall is constructed, the property of the
judgment debtor would be submerged in water. The learned
counsel appearing for the respondents submitted that the
petitioner has filed another suit pointing out this fact. Any how,
no such contention was raised in the Execution Petition before
the court below. Therefore, I am not inclined to consider this
contention raised by the petitioner. However, it is made clear
that the order in this revision and the order passed by the
executing court will not preclude the petitioner from raising the
contentions in the suit, if it is not otherwise barred.
K.T.SANKARAN,
JUDGE
csl