IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 36 of 2010()
1. SELVIN @ ELBIN, AGED 29 YEARS,
... Petitioner
2. MARIAM @ SHEEMOL, AGED 28 YEARS,
Vs
1. XAVIER, AGED 54 YEARS, S/O.YOHANNAN,
... Respondent
2. SHERLY,AGED 57 YEARS, W/O.XAVIER,
For Petitioner :SRI.G.KRISHNAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :24/02/2010
O R D E R
P. BHAVADASAN, J.
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C.R.P. No. 36 of 2010
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Dated this the 24th day of February, 2010.
ORDER
In this writ petition, the petitioners, who are
the judgment debtors calls in question the order passed
by the Munsiff’s Court, Kochi in E.P. 220 of 2009 in O.S.
314 of 2002. The parties and facts are hereinafter
referred to as they were available before the court
below.
2. The fight seems to be one between mother
and the son. The father, who was also in the fray is no
more. It appears that the parents of the first
respondent,who is the petitioner herein had instituted
O.S. 314 of 2002 seeking a decree for mandatory and
prohibitory injunction. A decree was passed in their
favour. Subsequently the father of the first petitioner
died. The decree is said to have been executed and the
petitioner and his wife had to vacate the premises and
the building.
C.R.P.36/2010. 2
3. The complaint of the decree holder, who is the
mother, is that the first floor of the building had been let out
to tenants. Coming to know that they had vacated the
premises, it is stated that the respondents before the court
below had trespassed into the property and occupied the
upstair portion of the building. The decree holder was also
assaulted by them resulting in her getting admitted in
General Hospital, Fort Kochi. A crime was registered with
regard to that incident. The judgment debtors had no right
to enter the premises or to occupy the building. Complaining
of high handed action by the respondents, the decree holder
sought appropriate reliefs.
4. The petition was resisted by the judgment
debtors. They pointed out that the first decree holder is no
more and the second decree holder cannot execute the
decree which was a joint one. According to the judgment
debtors after the death of the first decree holder and when
the tenants vacated the upstair portion, the second decree
C.R.P.36/2010. 3
holder, who is the mother wanted her son to stay by her side
and she called them back. It is stated that due to the
intervention and mediation of friends and relatives, the
judgment debtors agreed to reside with the decree holder
subject to certain conditions. An agreement was also
entered into. The judgment debtors denied that they had
forcibly entered the property and occupied the building. It
was also contended that a portion of the decree is not
executable and it is also submitted that even if the decree
holder had any grievance in the occupation of the judgment
debtors, she will have to recourse to another suit.
5. The court below took evidence in the matter
and found that the grievance of the decree holder is
genuine. Accordingly, the court below deputed an Amin to
execute the decree by removing the judgment debtors, if
need be, with police aid. It is the said order that is assailed
in this revision.
6. Learned counsel appearing for the revision
petitioners contended that the petition by the decree holder
C.R.P.36/2010. 4
is misconceived and is not maintainable. One of the decree
holders cannot execute the decree and also that even if the
statements made by the decree holders are true, she has to
resort to another suit to get relief in the matter. According to
learned counsel, when in pursuance to the decree, they had
earlier vacated the premises, the decree stood satisfied.
Their subsequent entry into the property, even if by force,
cannot enable the decree holder to execute the earlier
decree. It is also contended that being a composite decree,
a portion of it cannot be executed. It is contended that the
claim made by the decree holder that the judgment debtors
had occupied the upstair portion of the building by force is
not correct. It is pursuant to an agreement between the
judgment debtors and the decree holder that they had
occupied the premises. It is also contended that there is no
decree against them from entering the property
subsequently.
7. None of the contentions raised above are
tenable either on facts or in law. There is no law, which
C.R.P.36/2010. 5
prohibits one of the decree holders to execute the decree.
In the case on hand, the decree holders were the parents of
the first petitioner herein. Father died and the mother has
sought execution of the decree. Order XXI Rule 15 of the
Code of Civil Procedure enables one of the joint decree
holders to seek execution of the decree.
8. Equally untenable is the contention that after
the judgment debtors had initially vacated the premises,
the decree was satisfied that if there was any subsequent
trespass by them will not enable the decree holder to
execute the earlier decree. It is difficult to understand the
contention. If one is to say that after going away from the
property, soon thereafter if they again come back and
occupy the property in violation of the decree granted by the
court, to say that the earlier decree cannot be executed
would appear to be very unconvincing. If one is to hold that
each time violation takes place, the decree holder should
have to institute a new suit for the above purpose, the whole
exercise and the purpose becomes meaningless. That
C.R.P.36/2010. 6
cannot be the law. The judgment debtors had vacated the
property in pursuance of the decree. But that does not
mean that they can thereafter forcibly occupy the building
again. The decree holders had got a decree for both
mandatory injunction and prohibitory injunction. The
operative portion of the judgment reads as follows:
“In the result suit decreed by directing
the defendants to vacate the plaint schedule
building within one month from the date of this
judgment. Otherwise the plaintiffs are allowed to
cause eviction of the defendants through the
assistance of this court and to realise the
expenses incurring for which from the defendants
and their assets. The plaintiffs are allowed to
realise damages for use and occupation of the
building for the unauthorised occupation at the
rate of Rs.200/- per month from one month after
this judgment till the plaintiffs got vacant
possession of the building from the defendants.
Further the defendants and their men are
restrained by means of permanent prohibitory
injunction, restraining them from exerting money
from the plaintiffs with police help and causing
C.R.P.36/2010. 7
obstruction to the plaintiffs in mortgaging or
renting out any portion of plaint schedule building
and causing any obstruction to the plaintiffs in
enjoying plaint schedule property in any manner.
Plaintiffs are allowed to realise costs of the suit
also from the defendants and their assets.”
9. A reading of the decree would show that the
decree holders are entitled to remove the judgment debtors,
who are none other than the petitioners herein, from the
property and there is also prohibitory injunction against the
judgment debtors from trespassing into the property or
interfering with the peaceful life and enjoyment of the
property by the decree holders. It is therefore incorrect to
say that by vacating the premises, the decree stood
satisfied and nothing survived thereafter. The question as to
whether the petitioners herein are trespassers will be
considered a little later. It is clear that the claim of the
petitioners herein that since they vacated the premises,
nothing remains in the decree and that if they subsequently
C.R.P.36/2010. 8
occupied the building by force, the decree holder will have
to file a separate suit cannot be accepted.
10. Equally untenable is the contention regarding
the non-executability of the composite decree. It is
contended that the decree contained both mandatory and
prohibitory injunction. Mandatory portion of the decree for
injunction having been satisfied, it is contended that now the
prohibitory portion of injunction cannot be executed now.
11. One can only say as it is too toll a claim. The
issue is no longer res integra in view of the decision reported
in Simon v. Athirampuzha Panchayat (2001(1) K.L.T.
242), wherein it was held as follows:
“It is true that the decree granted by the trial
court is for injunction. Nevertheless, it is clear
from the reading of a decree that it consists of two
independent parts; the 1st being for enforcement
of the duties of the defendants through mandatory
injunction and the other restraining him from
doing certain things. While Art.135 provides a
period of limitation of three years for enforcement
of decree granting mandatory injunction, Art 136
C.R.P.36/2010. 9
provides for twelve years for executing other
decrees. However, it is specifically stated in
Art.136 that an application for enforcement or
execution of a decree granting perpetual
injunction shall not be subjected to any period of
limitation. Thus, here is a case where the decree
is composite; one part of which is subjected to
limitation period of 3 years whereas the other is
not subjected to any period of limitation at all and
the petitioner can enforce the prohibitory
injunction, whenever violation of that part takes
place. The court below has not considered the
question of enforcement of the prohibitory part of
the injunction with reference to Art.136 of the
Limitation Act. On the other hand it assumed that
once the mandatory part becomes unenforceable
the other part would be subjected to the same
fate. This is clearly erroneous. Here is a case
where the decree granted consists of two parts,
which are divisible and not at all inter-dependent.
Since the proviso to Art.136 does not provide for
any limitation for enforcing the prohibitory part,
the petitioner can very well maintain an execution
petition with regard to that part of the decree.”
C.R.P.36/2010. 10
In the light of the above decision, that contention also
cannot hold good.
12. Now I shall come to the contention regarding
the occupation of premises claimed by the petitioners.
According to the petitioners in this revision petition, after
the death of the husband of the present decree holder, and
when the tenants in the upstair portion of the building
vacated it, the mother wanted her son to be besides her and
solicited to come and stay with her. It is further claimed that
there was an agreement between the mother and the
petitioners setting down certain terms and conditions under
which the petitioners are to occupy the premises.
13. Learned counsel appearing for the
respondents pointed out that the agreements are concocted
documents and the decree holder was forced to sign on
them. The witnesses are stooges of the first petitioner and it
was pointed out that in fact if petitioners’ evidence is
considered, there are two agreements, one of which is
produced before the police station and the other before
C.R.P.36/2010. 11
court. They are not identical. That by itself is sufficient to
show that the claim that there was agreement is bogus.
14. It is seen that the petitioners herein had
produced Ext.B2 agreement said to have been entered into
between the surviving decree holder and the petitioners
herein. A reading of the agreement will itself show that it is
bogus. Again, as rightly pointed out by the learned counsel
for the respondents, it seems that the agreement produced
before the police is not the agreement now produced before
court. Even otherwise, it is rather inconceivable that the
mother, who wants her son to reside with her would insist on
an agreement being entered into before her son entered into
the premises. The lower court has also noticed that at the
time of the filing of the petition and thereafter the decree
holder is staying with her relatives. It is also sad to note
that the first petitioner tried to characterize his mother as
mentally ill. It is shocking to notice that in his deposition he
has stated that he could not succeed in his attempt to have
C.R.P.36/2010. 12
her admitted in a mental hospital only due to the
intervention of the public.
It was considering the above facts that the court
below has passed the impugned order. The order suffers
from no infirmities whatsoever and it is in accordance with
justice, equity and good conscience. The court below has
risen to the occasion and has passed an effective order. No
interference is called for with the order. The result is that
this petition is dismissed with costs.
P. BHAVADASAN,
JUDGE
sb.