High Court Kerala High Court

Kochunarayanan vs Mohanan on 12 October, 2009

Kerala High Court
Kochunarayanan vs Mohanan on 12 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 28653 of 2009(O)


1. KOCHUNARAYANAN, S/O.KRISHNAN,
                      ...  Petitioner
2. MANI, D/O.JANAKI, K.K.HOUSE,
3. NALINI, W/O.KOCHUNARAYANAN,
4. SARASSA, W/O.RAGHAVAN,
5. ASHA, D/O.SADASIVAN, JAYAMANDIRAM,

                        Vs



1. MOHANAN, S/O.SURENDRAN,
                       ...       Respondent

2. PRATHAPAN, S/O.PACHAN, KIZHAKKE

3. PRAKASH, S/O.RAGHAVAN,

4. SREEDEVI, D/O.PACHAN,

5. LEELA, D/O.JANAKI,

                For Petitioner  :SRI.RAJA VIJAYARAGHAVAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :12/10/2009

 O R D E R
                    S.S.SATHEESACHANDRAN, J.
                   -----------------------------------
                   W.P.(C).No.28653 of 2009 - O
                    ---------------------------------
             Dated this the 12th day of October, 2009

                            J U D G M E N T

Writ petition is filed seeking the following reliefs:

“i) to call for the records relating to Ext.P7 and

quash the same by issuing a writ in the nature of

certiorari.

ii) To direct the learned Munsiff-Magistrate to

conduct a fresh enquiry within the bounds of its

authority and in accordance with law.”

2. Petitioners are some of the judgment debtors in

E.P.No.39 of 2008 in O.S.No.71 of 1999 on the file of the Munsiff-

Magistrate court, Paravur. The respondents in the petition are the

decree holder and other co-judgment debtors. The first

respondent/decree holder in whose favour a decree of perpetual

prohibitory injunction was granted against the petitioners and other

respondents moved the above execution petition under Order XXI

Rule 32 of the Code of Civil Procedure imputing violation of that

decree by them. His case was that infringing the decree some

portions of his property on the southern side after demolishing a

rubble wall was trespassed upon for the purpose of widening a

W.P.(C).No.28653 of 2009 – O

2

pathway which had been described in the plaint as B schedule. The

judgment debtors on appearance resisted the application filing

objections. An advocate commissioner appointed by the court

reported that the rubble wall put up separating the decree holder’s

property with B schedule pathway had been found demolished.

Previous report of the commissioner prepared on the trial side

showed the existence of a rubble wall separating B schedule

pathway from the property of the decree holder. On the materials

produced in the execution petition in which the decree holder was

examined as PW1 and A1 to A7 were exhibited on his side, and the

report prepared in the proceedings and also that prepared earlier on

the trial side exhibited as C1 and C2 series the court below

accepted the case of the decree holder to the extent that the decree

of injunction had been violated by the demolition of the rubble wall.

However, on the materials placed, the court found that there was

no concrete evidence to hold that such infringement or violation of

the decree was made by the judgment debtors proceeded against.

That being so, they were found not condemners of the decree of

injunction. Taking note that in violation of the decree the rubble

wall had been demolished, the decree holder was permitted to

reconstruct the rubble wall under the supervision of an advocate

W.P.(C).No.28653 of 2009 – O

3

commissioner appointed by the court. Copy of the order so passed

is Ext.P7. 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.

3. 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 respondents is

necessary and it is dispensed with.

4. Learned counsel for the petitioners submitted that when

there is no evidence to show any infringement of the decree or

infringement over the property of the decree holder by any of the

judgment debtors proceeded against Ext.P7 order passed by the

court below permitting the reconstruction of the rubble wall was

not correct and proper. I do not find any merit in the submission of

the counsel. In the given facts of the case where the court is

satisfied that the decree had been violated but with no satisfactory

evidence to hold that such violation was made by the judgment

debtors against whom the decree was passed it is open to the court

to pass such orders as are necessary to advance the ends of justice.

Sub rule (5) of Rule 32 of Order XXI empowers the execution court

to pass such orders “as required to be done” to satisfy the decree

W.P.(C).No.28653 of 2009 – O

4

which had infringed or violated. Merely because the judgment

debtors have not been shown to be the condemners liable to

undergo punishment under one or two modes or both covered by

that rule, detention in civil prison and attachment of property, in

view of the absence of satisfactory evidence to prove their

culpability in violating the injunction, it does not follow the court is

powerless to pass appropriate orders as are found necessary to give

effect to the decree of injunction passed in favour of the decree

holder. The court has to see that appropriate remedial measures

are taken so that decree passed is given effect to. In that view of

the matter I find there is no impropriety or illegality in Ext.P7 order

passed by the court below permitting the decree holder to put up

the demolished rubble wall under the supervision of an advocate

commissioner.

Writ petition lacks merit, and it is dismissed.

S.S.SATHEESACHANDRAN,
JUDGE.

bkn/-