IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28653 of 2009(O)
1. KOCHUNARAYANAN, S/O.KRISHNAN,
... Petitioner
2. MANI, D/O.JANAKI, K.K.HOUSE,
3. NALINI, W/O.KOCHUNARAYANAN,
4. SARASSA, W/O.RAGHAVAN,
5. ASHA, D/O.SADASIVAN, JAYAMANDIRAM,
Vs
1. MOHANAN, S/O.SURENDRAN,
... Respondent
2. PRATHAPAN, S/O.PACHAN, KIZHAKKE
3. PRAKASH, S/O.RAGHAVAN,
4. SREEDEVI, D/O.PACHAN,
5. LEELA, D/O.JANAKI,
For Petitioner :SRI.RAJA VIJAYARAGHAVAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :12/10/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.28653 of 2009 - O
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Dated this the 12th day of October, 2009
J U D G M E N T
Writ petition is filed seeking the following reliefs:
“i) to call for the records relating to Ext.P7 and
quash the same by issuing a writ in the nature of
certiorari.
ii) To direct the learned Munsiff-Magistrate to
conduct a fresh enquiry within the bounds of its
authority and in accordance with law.”
2. Petitioners are some of the judgment debtors in
E.P.No.39 of 2008 in O.S.No.71 of 1999 on the file of the Munsiff-
Magistrate court, Paravur. The respondents in the petition are the
decree holder and other co-judgment debtors. The first
respondent/decree holder in whose favour a decree of perpetual
prohibitory injunction was granted against the petitioners and other
respondents moved the above execution petition under Order XXI
Rule 32 of the Code of Civil Procedure imputing violation of that
decree by them. His case was that infringing the decree some
portions of his property on the southern side after demolishing a
rubble wall was trespassed upon for the purpose of widening a
W.P.(C).No.28653 of 2009 – O
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pathway which had been described in the plaint as B schedule. The
judgment debtors on appearance resisted the application filing
objections. An advocate commissioner appointed by the court
reported that the rubble wall put up separating the decree holder’s
property with B schedule pathway had been found demolished.
Previous report of the commissioner prepared on the trial side
showed the existence of a rubble wall separating B schedule
pathway from the property of the decree holder. On the materials
produced in the execution petition in which the decree holder was
examined as PW1 and A1 to A7 were exhibited on his side, and the
report prepared in the proceedings and also that prepared earlier on
the trial side exhibited as C1 and C2 series the court below
accepted the case of the decree holder to the extent that the decree
of injunction had been violated by the demolition of the rubble wall.
However, on the materials placed, the court found that there was
no concrete evidence to hold that such infringement or violation of
the decree was made by the judgment debtors proceeded against.
That being so, they were found not condemners of the decree of
injunction. Taking note that in violation of the decree the rubble
wall had been demolished, the decree holder was permitted to
reconstruct the rubble wall under the supervision of an advocate
W.P.(C).No.28653 of 2009 – O
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commissioner appointed by the court. Copy of the order so passed
is Ext.P7. Propriety and correctness of that order is challenged in
the writ petition invoking the supervisory jurisdiction vested with
this Court under Article 227 of the Constitution of India.
3. I heard the counsel for the petitioners. Having regard to
the submissions made and taking note of the facts and
circumstances presented, I find no notice to the respondents is
necessary and it is dispensed with.
4. Learned counsel for the petitioners submitted that when
there is no evidence to show any infringement of the decree or
infringement over the property of the decree holder by any of the
judgment debtors proceeded against Ext.P7 order passed by the
court below permitting the reconstruction of the rubble wall was
not correct and proper. I do not find any merit in the submission of
the counsel. In the given facts of the case where the court is
satisfied that the decree had been violated but with no satisfactory
evidence to hold that such violation was made by the judgment
debtors against whom the decree was passed it is open to the court
to pass such orders as are necessary to advance the ends of justice.
Sub rule (5) of Rule 32 of Order XXI empowers the execution court
to pass such orders “as required to be done” to satisfy the decree
W.P.(C).No.28653 of 2009 – O
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which had infringed or violated. Merely because the judgment
debtors have not been shown to be the condemners liable to
undergo punishment under one or two modes or both covered by
that rule, detention in civil prison and attachment of property, in
view of the absence of satisfactory evidence to prove their
culpability in violating the injunction, it does not follow the court is
powerless to pass appropriate orders as are found necessary to give
effect to the decree of injunction passed in favour of the decree
holder. The court has to see that appropriate remedial measures
are taken so that decree passed is given effect to. In that view of
the matter I find there is no impropriety or illegality in Ext.P7 order
passed by the court below permitting the decree holder to put up
the demolished rubble wall under the supervision of an advocate
commissioner.
Writ petition lacks merit, and it is dismissed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-