IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33726 of 2009(O)
1. BABU, S/O.BHASKARAN,
... Petitioner
2. SURENDRAN @ SUREN, S/O.BHASKARAN,
3. DEEPU, S/O.RADHA,
Vs
1. SUJA, W/O.KRISHNAN,
... Respondent
For Petitioner :SRI.R.GOPAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :24/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
-------------------------------
W.P.(C).NO.33726 OF 2009 (O)
-----------------------------------
Dated this the 24th day of November, 2009
J U D G M E N T
Petitioners are the judgment debtors 2, 3 and 4 in
E.P.No.290 of 2007 in O.S.No.202 of 2004 on the file of the
IInd Additional Munsiff Court, Neyyattinkara. The decree
executed is one passed in a suit for injunction, both mandatory
and prohibitory, and the respondent is the decree holder. The
decree granted to the plaintiff enables her to restore a
compound wall as noted in the plan prepared by the
Commissioner and also a prohibitory injunction against the
defendants/judgment debtors from trespassing upon the plaint
property or constructing any pathway through that property.
Execution of the decree for putting up the compound wall was
resisted by the petitioners/judgment debtors, in which, among
other contentions, it was also canvassed that no construction
of the compound wall can be proceeded with without
obtaining a licence from the Panchayath. To substantiate
WPC.33726/09 2
their objections, the Secretary of the Panchayath was also
examined in the execution proceedings. The court below after
considering the decree and also hearing the counsel on both
sides, passed Ext.P6 order appointing an Advocate
Commissioner to supervise the putting up of the boundary in
tune with the decree. A Surveyor was also appointed to assist
the Advocate Commissioner. Ext.P6 is that order. 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.
2. 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
respondent/decree holder is necessary, and hence, it is
dispensed with. In Ext.P1 judgment rendered in the suit, the
court has held that the restoration of the compound wall can
be done with the consent of the Panchayath, if required, as per
the provisions of the Kerala Panchayath Raj Act and Rules, is
highlighted by the counsel contending that without getting
WPC.33726/09 3
consent or licence from the Panchayath, the decree holder
cannot put up the compound wall. The evidence of the
Secretary of the Panchayath, who was examined as a witness
in the execution proceedings, a copy of whose deposition is
produced as Ext.P5, is also banked upon by the counsel that
the court below went wrong in passing Ext.P6 order. The
court has turned down what is stipulated under the decree
and thus transgressed beyond the decree, is the submission of
the counsel to impeach Ext.P6 order. I do not find any merit
in the submissions made by the counsel. A decree has been
granted by the court enabling the plaintiff to restore and put
up a compound wall which had been demolished allegedly by
the defendants, as noted by the Advocate Commissioner in his
plan which forms part of the decree. Such construction can be
done only with the licence of the Panchayath cannot be raised
as an objection by the petitioners/judgment debtors, who are
bound by the decree. If the construction is done without
obtaining licence from the Panchayath, if so required, the
local authority can take appropriate steps, and no doubt, the
decree holder/plaintiff has to answer such proceedings. That,
WPC.33726/09 4
however, cannot be canvassed as a ground by the present
petitioners/judgment debtors who are bound by the decree
passed by the court. There is no impropriety or illegality in
Ext.P6 order and the writ petition is closed.
S.S.SATHEESACHANDRAN
JUDGE
prp