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E.G. Omana Amma vs Niravath Kunhiraman Nambiar on 12 February, 2009

Kerala High Court
E.G. Omana Amma vs Niravath Kunhiraman Nambiar on 12 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 291 of 2006()


1. E.G. OMANA AMMA, W/O.MADHAVAN NAMBIAR,
                      ...  Petitioner

                        Vs



1. NIRAVATH KUNHIRAMAN NAMBIAR,
                       ...       Respondent

                For Petitioner  :SRI.GRASHIOUS KURIAKOSE

                For Respondent  :SRI.P.VIJAYAKUMAR

The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :12/02/2009

 O R D E R
                             P.N.RAVINDRAN, J.
            ======================================
                          C.R.P.No.291 of 2006
             ======================================
               Dated this the 12th day of February 2009

                                  ORDER

The judgment debtor in O.S.No.15 of 1987 on the file of the

Court of the Munsiff-Magistrate of Sulthan Bathery is the revision

petitioner. The respondent is the decree holder. The suit was decreed on

29.3.1996. Alleging that on 15.1.2003, the judgment debtor and her

children trespassed into the suit property and destroyed the bund, the

respondent filed E.P.No.85 of 2004 under Order XXI Rule 32 of the Code

of Civil Procedure for enforcement of the decree. By order passed on

22.3.2006, execution court held that the petitioner has willfully failed to

obey the decree by demolishing the bund. She was accordingly directed

to reconstruct the bund failing which the decree holder was permitted to

reconstruct the same and to realise the cost of construction from the

judgment debtor. The execution court also ordered that if the judgment

debtor fails to reconstruct the bund within one month, she shall be

detained in the civil prison for a period of 15 days. The said order is

under challenge in this Civil Revision Petition.

2. I have heard Sri.Gracious Kuriakose, the learned counsel

appearing for the petitioner and Sri.P.Vijayakumar, the learned counsel

appearing for the respondent. During the course of the arguments,

Sri.P.Vijayakumar, the learned counsel appearing for the respondent

C.R.P.No.291 of 2006 2

submitted that the respondent had to incur an expenditure of Rs.700/-

to reconstruct the bund since the petitioner did not comply with the

direction issued by the execution court and that the respondent has no

objection to the order directing the petitioner to be detained in the civil

prison being set aside, if she pays the said sum of Rs.700/= and also a

reasonable amount as compensation. The learned counsel for the

petitioner submitted that the petitioner is willing to reimburse the said

sum of Rs.700/- and also pay a reasonable amount as compensation to

the respondent and that the order passed by the execution court below

may be suitably modified by deleting the order to detain the petitioner in

civil prison in the event of default of compliance with the order passed by

the execution court.

3. The petitioner is a woman aged more than 72 years. Though

she did not comply with the order passed by the execution court to

restore the bund within one month, she has now expressed willingness

to reimburse the expenses incurred by the respondent and to pay him a

reasonable amount as compensation. In view of submissions made at

the Bar by the learned counsel appearing on either side, I feel that the

ends of justice will be met if the petitioner pays to the respondent the

sum of Rs.1,500/- in all towards the cost of construction of the bund

and compensation.

4. I accordingly direct that in the event of the petitioner paying to

C.R.P.No.291 of 2006 3

the respondent the sum of Rs.1500/- on or before 16.3.2009, the order

passed by the court below directing her detention in the civil prison, if

she does not reconstruct the bund at her cost within the stipulated time,

shall stand set aside. Payment as directed above shall be made to the

respondent in person or to the learned counsel appearing for the

respondent in this Court. The petitioner shall after such payment, file a

memo in this Court, within another two weeks. On such deposit being

made, the order passed by the Court of the Munsiff-Magistrate of

Sulthan Bathery in E.P.No.85 of 2004 shall stand set aside and the

Execution Petition shall stand dismissed.

The Civil Revision Petition is disposed of as above.

P.N.RAVINDRAN, JUDGE

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