IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1209 of 2008()
1. VALSALA, D/O.LATE VARGHESE, KADAVIL
... Petitioner
2. JOHN, S/O.LATE VARGHESE, KADAVIL HOUSE
3. BABY, D/O.LATE VARGHESE, DO.DO.
4. JOMON, S/O.LATE VARGHESE, DO.DO.
Vs
1. T.F.JOSEPH, S/O.CHEEKAMMA,
... Respondent
2. SAJU, S/O.LATE VARGHESE,
3. ALEX, S/O.LATE VARGHESE, KADAVIL HOUSE
For Petitioner :SRI.T.K.KURIKESU
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :15/12/2008
O R D E R
V. RAMKUMAR , J.
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R.S.A. No. 1209 of 2008
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Dated this the 15th day of December, 2008.
JUDGMENT
Defendants 1 to 4 in O.S. No. 1356 of 2001 on the file of
the Principal Munsiff’s Court, Ernakulam are the appellants in
this Second Appeal. The said suit was one for a perpetual as well
as a mandatory injunction. The plaintiff/1st respondent filed the
suit seeking a mandatory injunction to remove a septic tank
constructed by the defendant in plaint A schedule property and to
remove the steps illegally constructed by them encroaching into
the plaint B schedule property and for a decree of perpetual
injunction restraining defendants 1 to 4 from making any
construction in the plaint B schedule property and also from
obstructing the user of the plaintiff over the plaint B schedule
property. As per the judgment and decree passed by the trial
court on 24.01.2005, the suit was decreed in part as follows:-
“a. A decree of mandatory injunction directing the defendants
to cover the opening on the western side of the newly constructed
tank so as to prevent omission of foul smell from it within two
months failing which plaintiff is permitted to cover the same and in
such a circumstances he will be entitled to recover the costs for the
same from defendants 1 to 4.
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b. A decree of mandatory injunction directing defendants 1
to 4 to remove the steps illegally constructed by them encroaching
into the plaint B schedule property within two months failing which
plaintiff is authorised to remove the same and in such a
circumstances he is entitled to recover the costs of the same from
defendants 1 to 4.
c. A decree of permanent prohibitory injunction restraining
defendants 1 to 4 from making any construction in the plaint B
schedule property and also from obstructing the user of the plaintiff
over plaint B schedule property.”
2. Even though the appellants preferred an appeal and a
Second Appeal against the said decree, those appeals were
dismissed confirming the decree passed by the trial court.
Thereafter, the decree holder sought execution of the decree by
filing E.P. No. 429 of 2007. The appellants resisted the E.P
contending inter alia that the steps sought to be removed were
very old steps which were in existence for the past several years
and that the property was not correctly identified and that the
plaintiff himself had after the institution of the suit, amended the
plaint by changing the survey number.
3. The Executing Court rejected the objections raised by
the appellants on the ground that it was not open to the
Executing Court to consider those objections by going behind the
R.S.A.No. 1209/2008 : 3:
decree. Accordingly, the execution petition was allowed on
22.02.2008 directing the Amin to execute the decree for removal
of the steps constructed in the plaint B schedule property. On
appeal preferred by the appellants as A.S. No. 93 of 2008 before
the District Court, Ernakulam, that court dismissed the appeal
confirming the order passed by the Executing Court. Hence this
Second Appeal.
4. The following is the question of law which is formulated
in the memorandum of Second Appeal:-
When there is no proper identity of the property mentioned in
the decree, can an execution petition be filed to deliver the property?
5. The learned counsel appearing for the appellants
reiterated before me the contentions raised by them before the
courts below.
6. I am afraid that I cannot agree with the above
submissions. It may be true that the judgment debtors are
‘kudikidappukars’ in possession of the kudikidappu in question.
But then, the appellant having raised the question of identity in
the suit and having lost the case which was fought upto this
R.S.A.No. 1209/2008 : 4:
Court, cannot again re-agitate the same question in execution.
The question of identity having decided in the suit itself, it is not
open to the appellants to rake up the very same contentions in
execution of the decree. The three steps which have been
directed to be removed as per the decree which has been
confirmed concurrently, will have to be removed by executing the
decree for mandatory injunction. No question of law, much less,
any substantial question of law arises for consideration in this
Second Appeal. The question of law formulated in the
memorandum of appeal also does not arise for consideration in
this Second Appeal which is accordingly dismissed in limine.
Dated this the 15th day of December, 2008.
V. RAMKUMAR, JUDGE.
rv
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