{"id":103251,"date":"2010-02-24T00:00:00","date_gmt":"2010-02-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/selvin-elbin-vs-xavier-on-24-february-2010"},"modified":"2017-04-18T22:38:09","modified_gmt":"2017-04-18T17:08:09","slug":"selvin-elbin-vs-xavier-on-24-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/selvin-elbin-vs-xavier-on-24-february-2010","title":{"rendered":"Selvin @ Elbin vs Xavier on 24 February, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Selvin @ Elbin vs Xavier on 24 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP.No. 36 of 2010()\n\n\n1. SELVIN @ ELBIN, AGED 29 YEARS,\n                      ...  Petitioner\n2. MARIAM @ SHEEMOL, AGED 28 YEARS,\n\n                        Vs\n\n\n\n1. XAVIER, AGED 54 YEARS, S\/O.YOHANNAN,\n                       ...       Respondent\n\n2. SHERLY,AGED 57 YEARS, W\/O.XAVIER,\n\n                For Petitioner  :SRI.G.KRISHNAKUMAR\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :24\/02\/2010\n\n O R D E R\n                        P. BHAVADASAN, J.\n             - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                       C.R.P. No. 36 of 2010\n            - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n          Dated this the 24th day of February, 2010.\n\n                                  ORDER\n<\/pre>\n
          In this writ petition, the petitioners, who are<\/p>\n
the judgment debtors calls in question the order passed<\/p>\n
by the Munsiff’s Court, Kochi in E.P. 220 of 2009 in O.S.<\/p>\n
314 of 2002. The parties and facts are hereinafter<\/p>\n
referred to as they were available before the court<\/p>\n
below.\n<\/p>\n
          2. The fight seems to be one between mother<\/p>\n
and the son. The father, who was also in the fray is no<\/p>\n
more.     It appears that the parents of the first<\/p>\n
respondent,who is the petitioner herein had instituted<\/p>\n
O.S. 314 of 2002 seeking a decree for mandatory and<\/p>\n
prohibitory injunction.           A decree was passed in their<\/p>\n
favour. Subsequently the father of the first petitioner<\/p>\n
died. The decree is said to have been executed and the<\/p>\n
petitioner and his wife had to vacate the premises and<\/p>\n
the building.\n<\/p>\n
C.R.P.36\/2010.                  2<\/span><\/p>\n
            3. The complaint of the decree holder, who is the<\/p>\n
mother, is that the first floor of the building had been let out<\/p>\n
to tenants. Coming to know that they had vacated the<\/p>\n
premises, it is stated that the respondents before the court<\/p>\n
below had trespassed into the property and occupied the<\/p>\n
upstair portion of the building. The decree holder was also<\/p>\n
assaulted by them resulting in her getting admitted in<\/p>\n
General Hospital, Fort Kochi. A crime was registered with<\/p>\n
regard to that incident. The judgment debtors had no right<\/p>\n
to enter the premises or to occupy the building. Complaining<\/p>\n
of high handed action by the respondents, the decree holder<\/p>\n
sought appropriate reliefs.\n<\/p>\n
            4. The   petition was resisted by the judgment<\/p>\n
debtors. They pointed out that the first decree holder is no<\/p>\n
more and the second decree holder cannot execute the<\/p>\n
decree which was a joint one. According to the judgment<\/p>\n
debtors after the death of the first decree holder and when<\/p>\n
the tenants vacated the upstair portion, the second decree<\/p>\n
C.R.P.36\/2010.                 3<\/span><\/p>\n
holder, who is the mother wanted her son to stay by her side<\/p>\n
and she called them back.       It is stated that due to the<\/p>\n
intervention and mediation of friends and relatives, the<\/p>\n
judgment debtors agreed to reside with the decree holder<\/p>\n
subject to certain conditions.      An agreement was also<\/p>\n
entered into. The judgment debtors denied that they had<\/p>\n
forcibly entered the property and occupied the building. It<\/p>\n
was also contended that a portion of the decree is not<\/p>\n
executable and it is also submitted that even if the decree<\/p>\n
holder had any grievance in the occupation of the judgment<\/p>\n
debtors, she will have to recourse to another suit.<\/p>\n
            5. The court below took evidence in the matter<\/p>\n
and found that the grievance of the decree holder is<\/p>\n
genuine. Accordingly, the court below deputed an Amin to<\/p>\n
execute the decree by removing the judgment debtors, if<\/p>\n
need be, with police aid. It is the said order that is assailed<\/p>\n
in this revision.\n<\/p>\n
            6.  Learned counsel appearing for the revision<\/p>\n
petitioners contended that the petition by the decree holder<\/p>\n
C.R.P.36\/2010.                 4<\/span><\/p>\n
is misconceived and is not maintainable. One of the decree<\/p>\n
holders cannot execute the decree and also that even if the<\/p>\n
statements made by the decree holders are true, she has to<\/p>\n
resort to another suit to get relief in the matter. According to<\/p>\n
learned counsel, when in pursuance to the decree, they had<\/p>\n
earlier vacated    the premises, the decree stood satisfied.<\/p>\n
Their subsequent entry into the property, even if by force,<\/p>\n
cannot enable the decree holder to execute the earlier<\/p>\n
decree. It is also contended that being a composite decree,<\/p>\n
a portion of it cannot be executed. It is contended that the<\/p>\n
claim made by the decree holder that the judgment debtors<\/p>\n
had occupied the upstair portion of the building by force is<\/p>\n
not correct. It is pursuant to an agreement between the<\/p>\n
judgment debtors and the decree holder that they had<\/p>\n
occupied the premises. It is also contended that there is no<\/p>\n
decree      against them     from     entering   the   property<\/p>\n
subsequently.\n<\/p>\n
            7.  None of the contentions raised above are<\/p>\n
tenable either on facts or in law. There is no law, which<\/p>\n
C.R.P.36\/2010.                 5<\/span><\/p>\n
prohibits one of the decree holders to execute the decree.<\/p>\n
In the case on hand, the decree holders were the parents of<\/p>\n
the first petitioner herein. Father died and the mother has<\/p>\n
sought execution of the decree. Order XXI Rule 15 of the<\/p>\n
Code of Civil Procedure enables one of the joint decree<\/p>\n
holders to seek execution of the decree.\n<\/p>\n
            8. Equally untenable is the contention that after<\/p>\n
the judgment debtors had initially vacated the premises,<\/p>\n
the decree was satisfied that if there was any subsequent<\/p>\n
trespass by them will not enable the decree holder to<\/p>\n
execute the earlier decree. It is difficult to understand the<\/p>\n
contention. If one is to say that after going away from the<\/p>\n
property, soon thereafter if they again come back and<\/p>\n
occupy the property in violation of the decree granted by the<\/p>\n
court, to say that the earlier decree cannot be executed<\/p>\n
would appear to be very unconvincing. If one is to hold that<\/p>\n
each time violation takes place, the decree holder should<\/p>\n
have to institute a new suit for the above purpose, the whole<\/p>\n
exercise      and the purpose becomes meaningless.      That<\/p>\n
C.R.P.36\/2010.                  6<\/span><\/p>\n
cannot be the law. The judgment debtors had vacated the<\/p>\n
property in pursuance of the decree.       But that does not<\/p>\n
mean that they can thereafter forcibly occupy the building<\/p>\n
again.     The decree holders had got a decree for both<\/p>\n
mandatory injunction and prohibitory injunction.        The<\/p>\n
operative portion of the judgment reads as follows:<\/p>\n
                “In the result suit decreed by directing<\/p>\n
      the defendants to vacate the plaint schedule<\/p>\n
      building within one month from the date of this<\/p>\n
      judgment. Otherwise the plaintiffs are allowed to<\/p>\n
      cause eviction of the defendants through the<\/p>\n
      assistance of this court and to realise the<\/p>\n
      expenses incurring for which from the defendants<\/p>\n
      and their assets.    The plaintiffs are allowed to<\/p>\n
      realise damages for use and occupation of the<\/p>\n
      building for the unauthorised occupation at the<\/p>\n
      rate of Rs.200\/- per month from one month after<\/p>\n
      this judgment till     the plaintiffs got vacant<\/p>\n
      possession of the building from the defendants.<\/p>\n
      Further the defendants and their men are<\/p>\n
      restrained by means of permanent prohibitory<\/p>\n
      injunction, restraining them from exerting money<\/p>\n
      from the plaintiffs with police help and causing<\/p>\n
C.R.P.36\/2010.                 7<\/span><\/p>\n
      obstruction to the plaintiffs in mortgaging or<\/p>\n
      renting out any portion of plaint schedule building<\/p>\n
      and causing any obstruction to the plaintiffs in<\/p>\n
      enjoying plaint schedule property in any manner.<\/p>\n
      Plaintiffs are allowed to realise costs of the suit<\/p>\n
      also from the defendants and their assets.”<\/p>\n<\/blockquote>\n
            9. A reading of the decree would show that the<\/p>\n
decree holders are entitled to remove the judgment debtors,<\/p>\n
who are none other than the petitioners herein, from the<\/p>\n
property and there is also prohibitory injunction against the<\/p>\n
judgment debtors from trespassing into the property or<\/p>\n
interfering with the peaceful life and enjoyment of the<\/p>\n
property by the decree holders. It is therefore incorrect to<\/p>\n
say that by       vacating the premises, the decree stood<\/p>\n
satisfied and nothing survived thereafter. The question as to<\/p>\n
whether the petitioners herein are trespassers will be<\/p>\n
considered a little later. It is clear that the claim of the<\/p>\n
petitioners herein that since they vacated the premises,<\/p>\n
nothing remains in the decree and that if they subsequently<\/p>\n
C.R.P.36\/2010.                   8<\/span><\/p>\n
occupied the building by force, the decree holder will have<\/p>\n
to file a separate suit cannot be accepted.<\/p><\/blockquote>\n
            10. Equally untenable is the contention regarding<\/p>\n
the non-executability of the composite decree.              It is<\/p>\n
contended that the decree contained both mandatory and<\/p>\n
prohibitory injunction. Mandatory portion     of the decree for<\/p>\n
injunction having been satisfied, it is contended that now the<\/p>\n
prohibitory portion of injunction cannot be executed now.<\/p>\n
            11. One can only say as it is too toll a claim. The<\/p>\n
issue is no longer res integra in view of the decision reported<\/p>\n
in   Simon v. Athirampuzha Panchayat<\/a> (2001(1) K.L.T.<\/p>\n
242), wherein it was held as follows:\n<\/p>\n
            “It is true that the decree granted by the trial<\/p>\n
      court is for injunction.    Nevertheless, it is clear<\/p>\n
      from the reading of a decree that it consists of two<\/p>\n
      independent parts; the 1st being for enforcement<\/p>\n
      of the duties of the defendants through mandatory<\/p>\n
      injunction and the other restraining him from<\/p>\n
      doing certain things.      While Art.135 provides a<\/p>\n
      period of limitation of three years for enforcement<\/p>\n
      of decree granting mandatory injunction, Art 136<\/p>\n
C.R.P.36\/2010.                  9<\/span><\/p>\n
      provides for twelve years for executing       other<\/p>\n
      decrees.      However, it is specifically stated in<\/p>\n
      Art.136 that an application for enforcement or<\/p>\n
      execution      of a   decree   granting   perpetual<\/p>\n
      injunction shall not be subjected to any period of<\/p>\n
      limitation. Thus, here is a case where the decree<\/p>\n
      is composite; one part of which is subjected to<\/p>\n
      limitation period of 3 years whereas the other is<\/p>\n
      not subjected to any period of limitation at all and<\/p>\n
      the     petitioner can   enforce   the   prohibitory<\/p>\n
      injunction, whenever violation of that part takes<\/p>\n
      place.    The court below has not considered the<\/p>\n
      question of enforcement of the prohibitory part of<\/p>\n
      the injunction with reference to Art.136 of the<\/p>\n
      Limitation Act. On the other hand it assumed that<\/p>\n
      once the mandatory part becomes unenforceable<\/p>\n
      the other part would be subjected to the same<\/p>\n
      fate.   This is clearly erroneous.   Here is a case<\/p>\n
      where the decree granted consists of two parts,<\/p>\n
      which are divisible and not at all inter-dependent.<\/p>\n
      Since the proviso to Art.136 does not provide for<\/p>\n
      any limitation for enforcing the prohibitory part,<\/p>\n
      the petitioner can very well maintain an execution<\/p>\n
      petition with regard to that part of the decree.”<\/p>\n
C.R.P.36\/2010.                10<\/span><\/p>\n<\/blockquote>\n
In the light of the above decision, that contention also<\/p>\n
cannot hold good.\n<\/p>\n
            12. Now I shall come to the contention regarding<\/p>\n
the occupation of premises claimed by the petitioners.<\/p>\n
According to the petitioners in this revision petition, after<\/p>\n
the death of the husband of the present decree holder, and<\/p>\n
when the tenants in the upstair portion of the building<\/p>\n
vacated it, the mother wanted her son to be besides her and<\/p>\n
solicited to come and stay with her. It is further claimed that<\/p>\n
there was an agreement between the mother and the<\/p>\n
petitioners setting down certain terms and conditions under<\/p>\n
which the petitioners are to occupy the premises.<\/p>\n
            13.    Learned    counsel    appearing     for  the<\/p>\n
respondents pointed out that the agreements are concocted<\/p>\n
documents and the decree holder was forced to sign on<\/p>\n
them. The witnesses are stooges of the first petitioner and it<\/p>\n
was pointed out that in fact if petitioners’ evidence is<\/p>\n
considered, there are two agreements, one of which is<\/p>\n
produced before the police station and the other before<\/p>\n
C.R.P.36\/2010.                 11<\/span><\/p>\n
court. They are not identical. That by itself is sufficient to<\/p>\n
show that the claim that there was agreement is bogus.<\/p>\n
            14.   It is seen that the petitioners herein had<\/p>\n
produced Ext.B2 agreement said to have been entered into<\/p>\n
between       the surviving decree holder and the petitioners<\/p>\n
herein. A reading of the agreement will itself show that it is<\/p>\n
bogus. Again, as rightly pointed out by the learned counsel<\/p>\n
for the respondents, it seems that the agreement produced<\/p>\n
before the police is not the agreement now produced before<\/p>\n
court. Even otherwise, it is rather inconceivable that the<\/p>\n
mother, who wants her son to reside with her would insist on<\/p>\n
an agreement being entered into before her son entered into<\/p>\n
the premises. The lower court has also noticed that at the<\/p>\n
time of the filing of the petition and thereafter the decree<\/p>\n
holder is staying with her relatives. It is also sad to note<\/p>\n
that the first petitioner tried to characterize his mother as<\/p>\n
mentally ill. It is shocking to notice that in his deposition he<\/p>\n
has stated that he could not succeed in his attempt to have<\/p>\n
C.R.P.36\/2010.                 12<\/span><\/p>\n
her admitted in a mental hospital only due to the<\/p>\n
intervention of the public.\n<\/p>\n
            It was considering the above facts that the court<\/p>\n
below has passed the impugned order. The order suffers<\/p>\n
from no infirmities whatsoever and it is in accordance with<\/p>\n
justice, equity and good conscience. The court below has<\/p>\n
risen to the occasion and has passed an effective order. No<\/p>\n
interference is called for with the order. The result is that<\/p>\n
this petition is dismissed with costs.\n<\/p>\n<\/p>\n
                                          P. BHAVADASAN,
\n                                              JUDGE<\/p>\n
sb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Selvin @ Elbin vs Xavier on 24 February, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-103251","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSelvin @ Elbin vs Xavier on 24 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/selvin-elbin-vs-xavier-on-24-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Selvin @ Elbin vs Xavier on 24 February, 2010 - 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