IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33862 of 2008(F)
1. HOTEL MEGHA (MULLAKARIYIL TOURIST HOME)
... Petitioner
2. M.J.THOMAS, S/O.JOSEPH
Vs
1. E.K.ISSAC, S/O.P.B.KURIAN
... Respondent
For Petitioner :SRI.JOHNSON MANAYANI
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :17/11/2008
O R D E R
K.P.BALACHANDRAN, J.
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W.P.C. No.33862 of 2008
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Dated this the 17th day of November, 2008
JUDGMENT
Petitioners are defendants in a suit
filed by the respondents for recovery of a
portion of the property allegedly encroached
upon by the petitioners. The suit was decreed.
Appeal filed by them was dismissed by the
first appellate court and finally by Ext.P1
judgment in RFA.1028/03 the concurrent verdict
was upheld and this Court dismissed the RFA in
limine. The matter is not taken to the Apex
Court. On the other hand, petitioners have
filed Ext.P5 suit before the Sub Court,
Ernakulam and sought for an injunction by
filing Ext.P6 application restraining the
respondent/decree holder in O.S.1203/97 of the
Munsiff’s Court, Ernakulam from enjoying the
plaint ‘B’ schedule property as according to
the petitioners, the respondent has
W.P.C. No.33862 of 2008 -2-
unauthorisedly encroached and occupied plaint
‘B’ schedule property. The claim so advanced
over ‘B’ schedule property is submitted to
have been not advanced in O.S.1203/97 and the
petitioners have lost their case up to this
Court as evidenced by Ext.P1. The petitioners
cannot be heard to contend against the
adjudication which has gone against them and
restrain execution of the decree obtained by
the respondent after a long legal fight up to
this Court in O.S.1203/97 aforesaid. There is
hence, no merit and the Sub Judge has
appropriately ordered only notice on Ext.P6
injunction petition. The prayer not to
demolish the alleged illegal construction as
per judgment and decree in O.S.1203/97 on the
file of the Munsiff’s Court, Ernakulam
confirmed in Ext.P1 judgment and to declare
that petitioners are entitled to an ex parte
interim injunction as prayed for vide Ext.P6
W.P.C. No.33862 of 2008 -3-
application is not at all reliefs which this
Court can countenance as the entire matter has
been adjudged concurrently up to this Court as
evidenced by Ext.P1 and the petitioners who
were defendants in the said suit and who
resisted the suit raising all contentions
available to them cannot restrain execution of
the decree so obtained by the respondent, by
filing a fresh suit. Counsel for the
petitioners submit that before the execution
court the case stands posted to tomorrow to
have the decree executed by deputing an Amin
demolishing the portion of land trespassed
upon by the petitioners as found in that suit
and to demolish the constructions effected
therein. He submits that an opportunity be
given to the petitioners to demolish the
unauthorised constructions by themselves. They
may do so if they so want but at the same
time, Amin or Commissioner may have to be
W.P.C. No.33862 of 2008 -4-
deputed to ascertain that the entire property
allowed to be got recovered from the
petitioners is delivered over to the decree
holder after demolishing the constructions
effected therein. However, to effectuate the
demolition and removal by themselves the
petitioners are granted two days time and
delivery shall stand adjourned to 21/11/08.
The petitioners shall produce a copy of this
judgment forthwith before the execution court
with notice to decree holder/respondent as
this writ petition is being disposed of
without notice to the respondent.
2. This Writ Petition is disposed of with
the above directions.
K.P.BALACHANDRAN,
JUDGE
kns/-