In the High Court of Judicature at Madras Dated : 14.3.2011 Coram : The Honourable Mr.Justice K.MOHAN RAM CIVIL REVISION PETITION (NPD) NO.577 of 2008 & MP.NO.1 OF 2008 1.Mr.Palanisamy 2.Mr.Rajendran ...Petitioners Vs 1.Mr.Mallanayakar 2.Mr.Chinnakannu 3.Mr.Bhagwan Nanja Nayakar ...Respondents PETITION under Section 115 of the Civil Procedure Code against the order dated 14.9.2007 made in EP.No.15 of 2006 in OS.No.33 of 2000 on the file of the District Munsif Court, Sathyamangalam. For Petitioners : Mr.S.Parthasarathy For Respondents 1 to 3 : No appearance. O R D E R
Though the respondents were served and their names printed in the cause list, they appear neither in person nor through counsel. Hence, the above civil revision petition is being disposed of on merits.
2. The judgment debtors 2 and 4 in EP.NO.15 of 2006 the defendants 2 and 4 in OS.No.33 of 2000 on the file of the District Munsif Court, Sathyamangalam are the petitioners in the above civil revision petition.
3. The first respondent herein filed the said suit against the petitioners and the respondents 2 and 3 herein seeking a decree for permanent injunction in respect of the suit property. Since the defendants remained absent, an ex parte decree was passed in the suit on 8.10.2001. Further, the defendants did not choose to file an application to set aside the ex parte decree thereby allowing the same to become final.
4. While so, the first respondent, alleging that the judgment debtors 2 and 4 in the suit disobeyed the decree for permanent injunction and trespassed into the suit property, filed EP.No.15 of 2006 to enforce the decree and to order arrest of the petitioners herein. In the said execution petition, the first respondent was examined as PW1 and the fourth defendant, who is the second petitioner herein, was examined as RW1. On a consideration of the materials available on record, the Execution Court came to the conclusion that the petitioners have disobeyed the ex parte decree and accordingly ordered arrest. Being aggrieved by that, the petitioners are before this Court.
5. Mr.S.Parthasarathy, learned counsel for the petitioners submitted that apart from the evidence of the decree holder PW1, there is no other independent evidence to show that the petitioners herein disobeyed the decree for injunction. Learned counsel, therefore, submitted that the Execution Court has committed an error in ordering arrest of the petitioners.
6. Alternatively, learned counsel for the petitioners, placing reliance on the Division Bench judgment in the case of Rajappan Vs. Sankaran Sudhakaran (reported in AIR 1997 Kerala 315), submitted that if this Court comes to the conclusion that the finding of the Execution Court is correct in ordering arrest, a reasonable cost may be imposed on the petitioners instead of arrest. Learned counsel further submitted that the petitioners will abide by the injunction decree and will not violate the same in future.
7. I have considered the aforesaid submissions and perused the materials available on record.
8. As far as the first submission of the learned counsel for the petitioners is concerned, it has to be pointed out that the second petitioner herein, who was examined as RW1, in his evidence, as pointed out by the Execution Court, asserted that they are in possession of the suit property, that the property belongs to them and as such, they are grazing their cattle in the property and that they have not violated the decree for injunction. The aforesaid assertion of the second petitioner herein in his evidence, as pointed out by the Execution Court, clearly shows that the petitioners have violated the injunction decree and that therefore, the contention of the learned counsel for the petitioners that no independent witness has been examined cannot be countenanced.
9. In the decision reported in AIR 1997 Kerala 315 (cited supra), the Division Bench has laid down as follows :
“Then the only question is whether the judgment debtors need be arrested as ordered by the Courts below. We think that the judgment debtors must be given an opportunity to avert the order for their arrest by compensating the plaintiff in a reasonable manner for their act of violation. While therefore we maintain the order of the Court below we order that the warrant issued by the Court below need not be enforced on condition that the judgment debtors pay into the Executing Court towards compensation to the decree holder a sum of Rs.5,000/- within a period of one month from this date. If the said sum of Rs.5,000/- is deposited, the same will be disbursed to the decree holder and further proceedings in the present execution petition will be terminated. In case the judgment debtors do not deposit the said amount within the time stipulated, the Court below will enforce its order and issue the necessary further directions in the present execution petition itself. It is made clear that the decree holder would be entitled to move the Executing Court in case of any further violation of the decree by the judgment debtors and if such further violation is made, it will be dealt with by the Executing Court very seriously and on the basis of the ratio of this order that the decree is enforceable as against the additional judgment debtors as well. We therefore confirm the order of the Executing Court with the modification that the judgment debtors are given an opportunity to compensate the decree holder for their violation and avert the enforcement of the present order for their arrest and on their failure to do so directing the Executing Court to proceed further and implement its order.”
10. In the light of the aforesaid decision and in the light of the submissions made by the learned counsel for the petitioners that the petitioners will abide by the decree for injunction and will not violate the same in future, this Court is inclined to accept the contentions of the learned counsel for the petitioners.
11. Accordingly, while maintaining the order of the Court below, it is ordered that the warrant issued by the Court below need not be enforced on condition that the judgment debtors 2 and 4 the petitioners herein shall deposit a sum of Rs.3,000/- (Rupees three thousand only) before the Execution Court within one month from the date of receipt of a copy of this order. After the said sum of Rs.3,000/- is deposited with the Execution Court, the same will be disbursed to the decree holder and further proceedings will be terminated. In case the petitioners fail to deposit the said amount within the time stipulated above, the Court below shall enforce the order dated 14.9.2007 and issue further directions. It is made clear that the decree holder would be entitled to move the Execution Court if there is any violation of the decree in future and if any such violation is brought to the notice of the Execution Court, it shall be dealt with very seriously.
12. With the above modifications, the order passed by the Court below dated 14.9.2007 is confirmed and the above civil revision petition is dismissed. No costs. Consequently, the above MP is closed.
To
The District Munsif Court,
Sathyamangalam
RS