IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 964 of 2004()
1. C.M.PAULOSE, S/O. MATHAI,
... Petitioner
2. PHILIP, S/O. PAULOSE, -DO- -DO-.
Vs
1. YOHANNAN, S/O. VARKEY,
... Respondent
For Petitioner :SRI.MATHEW SKARIA
For Respondent :SRI.PEEYUS A.KOTTAM
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :04/09/2007
O R D E R
PIUS C. KURIAKOSE, J.
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C.R.P.No.964 OF 2004
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DATED THIS THE 4TH SEPTEMBER, 2007
O R D E R
Judgment-debtors 2 and 3 against whom alone petition for
execution was filed by the respondent-decree-holder are aggrieved by
the order of the execution court by which it has been found that they
have violated the decree and appointed a commissioner for supervising
the restoration of the suit property as well as a kayyala thereon to
their original position at the cost of the petitioners. They are also
aggrieved by the direction of the execution court that they are liable to
be detained in civil prison for a period of three months for violation of
the decree.
2. Heard Sri.Mathew Skaria, learned counsel for the petitioners
and Sri.Peeyus A.Kottam, learned counsel for the respondent.
3. Sri.Mathew Skaria would submit that the finding of the
execution court that the petitioners are guilty of violation of the decree
for injunction is without any basis. The property in question belonged
to the 1st judgment-debtor and not to the petitioners. If at all anybody
violated the injunction decree, it is the 1st judgment-debtor who did so
and not the petitioners. The learned counsel submitted that the
petitioners are not seriously opposed to the kayyala and the suit
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property being restored to their original state. They are aggrieved by
the direction that such restoration shall be at their cost. Counsel
submitted that at any rate the direction that the petitioners be
arrested and detained in civil prison for a period of three months was
not justified.
4. The submission of Mr.Mathew Skaria were resisted by
Mr.Peeyus A.Kottam, counsel for the respondent.
5. Having considered the rival submissions addressed at the
Bar, I do not find much merit in the submission that it is the 1st
judgment-debtor who is presently in America who should be found
responsible for the alleged violation of the decree. The 1st judgment-
debtor is admittedly the son of the 1st petitioner. Obviously, it is the
1st petitioner who is in charge of the decree-schedule property on
behalf of the 1st judgment-debtor in his absence. It is the petitioners
alone who could have violated the decree and not the 1st judgment-
debtor who is away in America. The position is obvious that the
decree has been violated and the status quo ante which obtained in
respect of the suit property has been disturbed. I do not find any
warrant for setting aside the first four directions issued by the learned
Munsiff under the impugned order.
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6. At the same time, I feel that since the fifth direction pertains
to the personal liberty of the petitioners who are not the owners of the
property, the said direction requires reconsideration. I set aside the
fifth direction in the impugned order and direct the learned Munsiff to
pass fresh orders. The learned Munsiff will be justified in quantifying
and directing payment of any reasonable amount as compensation in
lieu of arrest. Fresh orders as directed above shall be passed by the
learned Munsiff at the earliest and at any rate within three months of
receiving copy of this order.
The C.R.P. is disposed of as above. No costs.
(PIUS C.KURIAKOSE, JUDGE)
tgl
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