Vasudevan Saseendran vs Pathummal Beevi Nabeesa Beevi on 5 September, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 1564 of 2001(I)



1. VASUDEVAN SASEENDRAN
                      ...  Petitioner

                        Vs

1. PATHUMMAL BEEVI NABEESA BEEVI
                       ...       Respondent

                For Petitioner  :SRI.L.MOHANAN

                For Respondent  :SRI.R.S.KALKURA

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :05/09/2007

 O R D E R
                        M.N.KRISHNAN,J
                   ================
                      C.R.P.No.1564 of 2001
                   =================
            Dated this the 5th day of September, 2007


                              ORDER

This revision petition is preferred against the order of the

Principle Munsiff, Nedumangad in E.P.No.76/1997. The E.P is

filed with the allegation that the defendant in the suit are

attempting to excavate earth contrary to the directions contained

in the judgment and decree of the Appellate Court and therefore

it is necessary for the court to appoint an expert for the purpose

of implementing the decision of the Appellate Court. It is

specifically averred in the execution petition that on 19.10.1997

the defendants had come to their property to remove the earth

contrary to the directions and on account of the timely

intervention it did not materialise. The learned counsel for the

revision petitioner had brought to my notice the decision of the

District Judge, Thiruvananthapuram, in A.S.No.305/1986. It is

very clearly laid down there in that the injunction is granted

against the defendants from excavating earth adjoining the

plaint C schedule pathway beyond the present level is noticed in

C.R.P.No.1564/2001
:2:

the Commissioner’s Report and Plan. The defendants are also

prohibited from excavating earth from their property without

leaving atleast 10 links width at the surface level of the plaint A

schedule property along with its western boundary and in case

earth is excavated it should be done in a slanting manner so as to

avoid subsidence of plaint A schedule property. Now the

grievance of the revision petitioner is that contrary to the

directions attempt is made by the defendants to excavate earth

if it materialises it will destroy their property and will be in

gross violation of the terms of the judgment and decree.

Unfortunately the court below has not approach the matter in

that perceptive and has stated that in a decree for injunction

this cannot be considered. What the plaintiff apprehends is that

if in contravention of the terms of the decree and judgment earth

is removed without a slope it will destroy the property and

precisely that is what is protected by the Appellate judgment

and decree. I feel the said contention requires consideration by

the court below and therefore the order under challenge is set

aside and the matter is remitted back to the trial court for fresh

consideration of the matter especially after referring to the

C.R.P.No.1564/2001
:3:

averments in the execution petition. The court below shall give

an opportunity to both sides to adduce evidence in support of

their respective contention and dispose of the matter in

accordance with law. The parties are directed to appear before

the court below on 06.10.2007.

M.N.KRISHNAN,JUDGE

dvs