IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31689 of 2009(O)
1. SREELEKHA G.,
... Petitioner
2. UDAYAKUMAR G.,
Vs
1. DR. N.REGHUDAS,
... Respondent
For Petitioner :SRI.S.SANTHOSH KUMAR
For Respondent :SRI.VINOY VARGHESE KALLUMOOTTILL
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :23/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.31689 of 2009 - O
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Dated this the 23rd day of November, 2009
J U D G M E N T
Petitioners are the judgment debtors in O.S.No.417 of 2007
on the file of the Principal Munsiff Court, Kollam. The decree
executed is one passed in a suit for perpetual prohibitory
injunction and the respondent is the decree holder/plaintiff. The
decree was passed exparte. Ext.P2 is the copy of the order.
Admittedly, after dismissal of an application moved by the
petitioner/defendant for setting aside the exparte decree under
Order IX Rule 13 of the CPC an appeal preferred is pending
before the District Court, Kollam. That appeal has been preferred
with a petition to condone delay of 74 days. Meanwhile,
respondent/decree holder has filed an execution petition as
E.P.No.210 of 2008 and the execution court is continuing with the
proceedings thereof. The judgment debtors on appearance in the
execution proceedings moved an application to stay the
proceedings. That application was declined vide P11 order. The
executing court also ordered for executing the decree appointing
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an advocate commission for the construction of boundary wall in
the plaint B schedule property. Ext.P12 is the copy of that order.
Propriety and correctness of the above orders is challenged in the
writ petition invoking the supervisory jurisdiction vested with this
Court under Article 227 of the Constitution of India.
2. I heard the counsel on both sides.
3. From the facts and circumstances presented and the
submissions made with reference to the exhibits tendered in the
writ petition, it is seen, the decree executed is one passed in a
suit for injunction. A decree for injunction is executable only in
the manner and under the circumstances covered by order XXI
Rule 32 of the CPC. That means, in the event of violation of a
decree granted by the court, then alone the decree holder will be
able to approach the court to seek execution of a decree of
injunction. From the submissions made, it appears, on the basis
of the decree of injunction the decree holder proceeds for putting
up boundaries over his property. Order XXI Rule 32 of the CPC
envisages of execution of decree for specific performance, for
restitution of conjugal rights, or for an injunction for its
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enforcement by intervention of the court. How such an
application is to be dealt with is also covered by the provisions
under that rule. Irrespective of the fact that the judgment debtor
remained exparte at the trial stage when a decree of injunction is
sought to be prosecuted it can be done only in violation of the
decree by the judgment debtor. It is the duty of the court to
examine first whether there was violation of the decree of
injunction. Enquiry thereof has to be conducted and then only
the court can pass an order as the rule contemplates attachment
of the property of the judgment debtor and also his arrest in the
event of noncompliance of the decree of injunction. The question
of executing the decree even if it is found necessary can be
proceeded only after a finding is entered against the judgment
debtor that he has violated the decree. Apparently no such
finding is entered by the execution court. Ext.P12 order
appointing commission is set aside. The execution court is
directed to examine that question afresh and then proceed with
the matter as covered by the provisions of Rule 32 of Order XXI
of the CPC.
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4. It is submitted that the respondent has entered
appearance in C.M.A.No.85 of 2009 on the file of the District
Court, Kollam, wherein the delay petition is pending enquiry.
The learned District Judge is directed to expedite the enquiry on
the delay petition at the earliest and if delay is condoned, subject
to terms or otherwise, dispose the C.M.A without delay.
Writ petition disposed of as above. Send over a copy of the
judgment to the learned District Judge and also to the execution
court concerned.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-