Sreelekha G vs Dr. N.Reghudas on 23 November, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 31689 of 2009(O)


1. SREELEKHA G.,
                      ...  Petitioner
2. UDAYAKUMAR G.,

                        Vs



1. DR. N.REGHUDAS,
                       ...       Respondent

                For Petitioner  :SRI.S.SANTHOSH KUMAR

                For Respondent  :SRI.VINOY VARGHESE KALLUMOOTTILL

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :23/11/2009

 O R D E R
                   S.S.SATHEESACHANDRAN, J.
                  -----------------------------------
                  W.P.(C).No.31689 of 2009 - O
                   ---------------------------------
            Dated this the 23rd day of November, 2009

                          J U D G M E N T

Petitioners are the judgment debtors in O.S.No.417 of 2007

on the file of the Principal Munsiff Court, Kollam. The decree

executed is one passed in a suit for perpetual prohibitory

injunction and the respondent is the decree holder/plaintiff. The

decree was passed exparte. Ext.P2 is the copy of the order.

Admittedly, after dismissal of an application moved by the

petitioner/defendant for setting aside the exparte decree under

Order IX Rule 13 of the CPC an appeal preferred is pending

before the District Court, Kollam. That appeal has been preferred

with a petition to condone delay of 74 days. Meanwhile,

respondent/decree holder has filed an execution petition as

E.P.No.210 of 2008 and the execution court is continuing with the

proceedings thereof. The judgment debtors on appearance in the

execution proceedings moved an application to stay the

proceedings. That application was declined vide P11 order. The

executing court also ordered for executing the decree appointing

W.P.(C).No.31689 of 2009 – O

2

an advocate commission for the construction of boundary wall in

the plaint B schedule property. Ext.P12 is the copy of that order.

Propriety and correctness of the above orders is challenged in the

writ petition invoking the supervisory jurisdiction vested with this

Court under Article 227 of the Constitution of India.

2. I heard the counsel on both sides.

3. From the facts and circumstances presented and the

submissions made with reference to the exhibits tendered in the

writ petition, it is seen, the decree executed is one passed in a

suit for injunction. A decree for injunction is executable only in

the manner and under the circumstances covered by order XXI

Rule 32 of the CPC. That means, in the event of violation of a

decree granted by the court, then alone the decree holder will be

able to approach the court to seek execution of a decree of

injunction. From the submissions made, it appears, on the basis

of the decree of injunction the decree holder proceeds for putting

up boundaries over his property. Order XXI Rule 32 of the CPC

envisages of execution of decree for specific performance, for

restitution of conjugal rights, or for an injunction for its

W.P.(C).No.31689 of 2009 – O

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enforcement by intervention of the court. How such an

application is to be dealt with is also covered by the provisions

under that rule. Irrespective of the fact that the judgment debtor

remained exparte at the trial stage when a decree of injunction is

sought to be prosecuted it can be done only in violation of the

decree by the judgment debtor. It is the duty of the court to

examine first whether there was violation of the decree of

injunction. Enquiry thereof has to be conducted and then only

the court can pass an order as the rule contemplates attachment

of the property of the judgment debtor and also his arrest in the

event of noncompliance of the decree of injunction. The question

of executing the decree even if it is found necessary can be

proceeded only after a finding is entered against the judgment

debtor that he has violated the decree. Apparently no such

finding is entered by the execution court. Ext.P12 order

appointing commission is set aside. The execution court is

directed to examine that question afresh and then proceed with

the matter as covered by the provisions of Rule 32 of Order XXI

of the CPC.

W.P.(C).No.31689 of 2009 – O

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4. It is submitted that the respondent has entered

appearance in C.M.A.No.85 of 2009 on the file of the District

Court, Kollam, wherein the delay petition is pending enquiry.

The learned District Judge is directed to expedite the enquiry on

the delay petition at the earliest and if delay is condoned, subject

to terms or otherwise, dispose the C.M.A without delay.

Writ petition disposed of as above. Send over a copy of the

judgment to the learned District Judge and also to the execution

court concerned.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-