IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9899 of 2008(C)
1. ASHA, AGED 61 YEARS,
... Petitioner
Vs
1. THE DISTRICT SUPERINTENDENT OF POLICE,
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. THE SUB INSPECTOR OF POLICE,
4. K.P. GOPALAKRISHNA PILLAI,
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :26/05/2008
O R D E R
K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ.
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W.P.(C)No.9899 OF 2008
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DATED THIS THE 26th DAY OF MAY, 2008
J U D G M E N T
Balakrishnan Nair, J.
The writ petitioner has approached this Court, seeking the
following relief:
” issue a writ of mandamus or any other
appropriate writ, direction or order commanding
respondents 1 to 3 to afford police aid for
implementing the direction of the court in Exhibit P7
and to maintain the compound wall to be constructed
through the process of the court as directed in Exhibit
P7 order.
2. The brief facts of the case as stated by the petitioner, are
the following. The petitioner’s late husband owned 85 cents of land
in Kollam Village. On his death, the same devolved upon herself and
her children. The 4th respondent and his brother owned a property,
which was lying on the southern side of the above 85 cents of land.
The eastern boundary of that property was a road. While the 4th
respondent and his brother partitioned their property, the portion
having road frontage was allotted to his brother. The said respondent
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2
took the rear portion of the property, without providing any access to
the road through his brother’s share. To have access to the road, the
said respondent tried to demolish the compound wall of the property of
the petitioner and cut open a pathway. So, the petitioner’s husband
moved the Munsiff’s Court, Kollam, by filing O.S.No.193/95. The said
suit was decreed as per Exhibit P1, granting a decree of mandatory
injunction, directing the 4th respondent to restore the demolished
compound wall separating his property and the property of the
petitioner. The said decree has become final. The petitioner’s
husband filed E.P.No.171/91 for executing the decree. The court
passed Exhibit P2 order dated 15.3.2001, directing the 4th respondent
to restore the compound wall demolished by him and to remove the
gate installed by him. The relevant portion of the order reads as
follows:
“From the above discussions I hold that Decree
Holder has succeeded to prove that the judgment debtor
has contumaciously violated the decree and therefore the
same is liable to be enforced by him. Judgment Debtor is
not entitled to use any portion of decree schedule as a
way. And he is directed to restore the compound wall
demolished by him and to remove the gate installed on
W.P.(C)No.9899 OF 2008
3the wall within three weeks from this date. In the
meanwhile there shall be attachment of the property
owned by Judgment debtor and on his failing to obey the
decree, the decree holder is allowed to restore the
compound wall to the original position and to remove the
gate at the cost and expenses of the judgment debtor
and his assets and by the sale of his properties. E.P.
posted for further steps.”
The 4th respondent challenged Exhibit P2, by filing C.R.P.No.1024/01
before this Court. It was dismissed as withdrawn on 19.7.2001.
3. Since the 4th respondent did not obey the direction in
Exhibit P2, the petitioner’s husband filed E.A.No.416/01, to restore the
demolished portion of the compound wall, by appointing an Advocate-
Commissioner. During the pendency of that application, the
petitioner’s husband died and the petitioner and her children got
themselves impleaded in the said E.A. The court allowed the said E.A.
and appointed an Advocate-Commissioner, to implement the directions
contained in Exhibit P2 order. Exhibit P3 is the order in the E.A.
Though the 4th respondent filed W.P.(C)No.32713/04 before this Court,
challenging Exhibit P3, the said writ petition was dismissed as
withdrawn. Later, the petitioner provided men and material and
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4
restored the compound wall by spending an amount of Rs.10,000/-.
While so, the 4th respondent and his supporters demolished the
compound wall on 22.1.2005, which was constructed under the
supervision of the Commissioner. So, again E.A.No.48/05 was filed
before the execution court. The court again ordered to restore the
compound wall, as directed in Exhibit P3. The copy of the order in that
E.A. is Exhibit P4. Again the petitioner was permitted to construct the
compound wall through the process of the court. The relevant portion
of the said order reads as follows:
“Therefore judgment debtor violated the
decree wilfully without any excuse.
In the result, petition allowed as follows:
a) Decree holders are permitted to construct the
compound wall in its original position through the
process of this court at the expense of judgment
debtor.
b) The expense to be incurred for the
construction of the compound wall is liable to be
recovered from the judgment debtor and his
assets.
c) The expense incurred for the construction of
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the compound wall on 2.1.2005 Rs.10,000/- is also
liable to be recovered from the judgment debtor
and his assets.
d) Decree holder is entitled to get the costs of
the petition.”
4. Exhibit P4 order was challenged by the 4th respondent
before this Court, by filing W.P.(C)No.4321/08. The said writ petition
was dismissed on 6.2.2008. The said judgment reads as follows:
“This writ petition is preferred to set aside
Ext.P8 order and to defer the construction of the
compound wall in pursuance of Ext.P8 order. This is a
classical case which will demonstrate the disregard of a
party to the orders and judgments of the Courts. A
perusal of the order passed by the learned Munsiff would
reveal that time and again the judgment debtor will
violate the order of the Court and if a wall is constructed
through the Court it will be demolished and I can give few
illustrations as is seen from the order. The original
decree holder filed E.A.416/01 and before that on
9.1.1996 there was an order to restore the compound
wall into its original position on 26.12.96. The judgment
W.P.(C)No.9899 OF 2008
6debtor and his relatives demolished a portion of the
compound wall. In E.A.416/01 an application was made
for restoration of the compound wall through a
Commissioner which was allowed by the Court with the
assistance of the police. The judgment debtor
approached the High Court, though obtained an interim
stay later it was dismissed and thereafter the compound
wall was restored through the process of the Court on
22.1.05 also with a right to recovery of loss of
Rs.10,000/-. Thereafter at 6.30 p.m. on the very same
day the relatives and men of the judgment debtor
gathered there and demolished the compound wall as it is
seen proved by Exts.C1 and C2. There has been a
persistent and consistent move on the part of the
judgment debtor to nullify the decree that has been
granted by the Court. It is under such circumstances the
Court again permitted the decree holder to construct the
compound wall and also to recover the expenses
incurred. I do not find any ground to interfere with that
order.
The prayer of the learned counsel for the writ
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7
petitioner to stay operation of Ext.P8 order till the
disposal of I.A.655/08 also cannot be entertained for the
reason that it is an application for setting aside the
exparte decree which has been passed long long back and
the matter has been adjudicated before the execution
Court on innumerable number of occasions. I do not find
any merit in this writ petition and therefore it is
dismissed.”
When, pursuant to Exhibit P4, the Amin of the Munsiff’s Court
attempted to restore the compound wall, he was obstructed by the 4th
respondent and his men. The Amin reported the matter to the court
and the court addressed the Superintendent of Police to give
protection to enforce its order. Accordingly, with police protection, the
compound wall was restored on 7.2.2008. Again, in the night of
7.2.2008, the 4th respondent demolished the compound wall. So, the
Police registered Exhibit P5 crime against him. The petitioner,
thereafter, filed E.A.No.156/08 seeking necessary orders to restore the
compound wall through the process of the court. That application
was allowed by Exhibit P7 and the Superintendent of Police was
directed to render necessary Police assistance. The petitioner submits
that because of political influence exerted on the Police, even in the
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8
face of Exhibit P7, the Police did not extend any help to restore the
compound wall. So, she filed Exhibit P8 representation before the
Police and thereafter this writ petition was filed, seeking the above
quoted reliefs. This Court on 28.3.2008 passed the following interim
order.
“Heard. The facts of the case disclosed are
really distressing. The 4th respondent is repeatedly
flouting the orders of the Civil Court allegedly with
the connivance of the Police Officials. The petitioner
submits, as per Ext.P7 even though the execution
Court addressed the Police to render assistance to
the petitioner to put up the compound wall, the
Police have not taken any action.
Having regard to the facts of the case, an
interim order as prayed for is issued. Having regard
to the special facts of the case, we propose to award
compensatory costs against the respondents
including the Police officials. They may show cause
why we may not pass such an order.”
Pursuant to the above direction, the police acted and with their
protection, the compound wall was restored.
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9
5. The 4th respondent has filed a detailed counter affidavit,
resisting the prayers in the writ petition. The main point taken in the
counter affidavit is that Exhibit P1 decree has been obtained by fraud.
A purambokku pathway was shown as part of the property of the
plaintiff and a decree has been obtained suppressing the material
facts. The 4th respondent was using that pathway for several years
and with the blocking of the pathway he has no access to go to the
outside world. The 4th respondent also submitted that he is not a party
to Exhibit P1 decree. He is K.P.Gopalakrishnan Nair, as evident from
Exhibits R4(a) to R4(c) the documents produced by him. In Exhibit P1
his name is shown as K.P.Gopalakrishna Pillai. It is also submitted
that he has filed O.S.No.689/01 before the Munsiff’s Court seeking to
declare his right over the pathway, which is described as plaint B
schedule in that suit. He also prays for setting aside Exhibit P1 decree,
stated to have been obtained by fraud. Now the purambokku pathway
is treated by the survey officials as the property of the petitioner and
mutation has been carried out in the survey records, relying on that
fraudulent decree. As a result of the execution of the decree, the 4th
respondent’s only access to go outside has been blocked and he and
his wife are remaining in that house without any ingress and egress.
The official respondents have filed a counter affidavit, denying the
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allegations against them. They have already rendered necessary
protection, as directed in Exhibit P7, during the pendency of this writ
petition, it is submitted.
6. We heard the learned counsel on both sides.
7. The learned senior counsel for the 4th respondent relied on
the decision of the Apex Court in S.P.Chengalvaraya Naidu v.
Jagannath (1994 (1) SCC 1) and submitted that Exhibit P1 decree,
which was obtained by fraud, is void and the same can be attacked in
execution proceedings and even collaterally. Therefore, this Court
may not extend its helping hand to the petitioner, who is seeking the
reliefs on the strength of a decree obtained by fraud by her husband, it
is submitted.
8. We notice that Exhibit P1 has become final. We also notice
that in Exhibit P2, P3, P4, P6 and P7 orders, the 4th respondent was
appearing through counsel, wherein he was described as
Gopalakrishna Pillai. In C.R.P.No.1024/2001, he had described himself
as Gopalakrishna Pillai. If Exhibit P1 was obtained by fraud, the 4th
respondent should establish the same in appropriate proceedings.
Though he has filed a suit seeking reliefs against Exhibit P1, there is
no interim order in that suit. It is true, if the 4th respondent feels
that the decree was obtained by fraud, he can resist the same in the
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execution proceedings. In the orders passed in the execution petition
and execution applications, he could have raised those contentions.
But the challenges attempted against those orders before this Court
were already repelled.
9. The writ petitioner approached this Court, since the Police
did not extend necessary help to execute the decree on the basis of
Exhibit P7 order of the Civil Court. When Exhibit P7 order is received,
the Police have a duty to act as requested therein. The Police have
failed to do that. Therefore this writ petition is filed, seeking a writ of
mandamus against the police. We feel that it is quite inappropriate for
the 4th respondent to set up a plea of nullity of the decree in this case.
He could have set up that plea before the court below or in the
proceedings before this Court, challenging the orders of the court
below. The police cannot look into that contention or accept that
contention. As we have repeated in several other cases, this Court, in
the police protection jurisdiction is concerned only with the failure of
duty of the police enjoined upon them by the statutes. Since the
Police do not have any duty to accept the contention concerning the
validity of Exhibit P1, we cannot also go into the validity of Exhibit P1,
raised collaterally before us in this writ petition. Therefore, the said
contention of the 4th respondent is overruled. If the 4th respondent has
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any grievance, he has to take recourse to other remedies under law.
He has already invoked one of the remedies available to him, by filing
a suit. But, instead of obtaining appropriate orders in that suit, he
cannot take law into his hand and physically prevent the execution of
the decree, which has become final. That is what is attempted in this
case and therefore the Civil Court, by Exhibit P7 addressed the police
to enforce its orders. Since the Police failed to do that, we are fully
justified in issuing the direction as prayed for by the petitioner.
Therefore, the writ petition is allowed. The Police shall render
necessary protection for maintenance of the compound wall already
constructed. But this direction will be subject to any orders of the
competent civil court concerning the matter. In other words, this
judgment will not stand in the way of the 4th respondent to pursue his
claims and rights before the civil court. Having regard to the facts of
the case, the petitioner is entitled to get costs from the 4th respondent,
which is quantified as Rs.10,000/- (Rupees Ten Thousand only).
K.BALAKRISHNAN NAIR, JUDGE.
M.C.HARI RANI, JUDGE.
dsn