{"id":231747,"date":"2005-02-24T00:00:00","date_gmt":"2005-02-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thazhapattathillath-krishnan-vs-t-damodaran-namboodiri-on-24-february-2005"},"modified":"2017-02-22T08:24:45","modified_gmt":"2017-02-22T02:54:45","slug":"thazhapattathillath-krishnan-vs-t-damodaran-namboodiri-on-24-february-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thazhapattathillath-krishnan-vs-t-damodaran-namboodiri-on-24-february-2005","title":{"rendered":"Thazhapattathillath Krishnan … vs T.Damodaran Namboodiri on 24 February, 2005"},"content":{"rendered":"
Kerala High Court<\/div>\n
Thazhapattathillath Krishnan … vs T.Damodaran Namboodiri on 24 February, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP No. 1975 of 2000\n\n\n1. THAZHAPATTATHILLATH KRISHNAN NAMBOODIRI\n                      ...  Petitioner\n\n                        Vs\n\n\n1. T.DAMODARAN NAMBOODIRI\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.JAGADEESCHANDRAN NAIR\n\n                For Respondent  :SRI.V.V.ASOKAN\nThe Hon'ble MR. Justice K.T.SANKARAN\n\n Dated :     24\/02\/2005\n O R D E R\n<\/pre>\n
………L…….T…….T…….T…….T…….T…….T……J
\n          K.T. SANKARAN, J.@@
\n         jAAAAAAAAAAAAAAAAA\n<\/p>\n
          ——————————–@@
\n         j
\n          @@
\n         j
\n          C.R.P.NO. 1975 of 2000 &@@
\n         j<\/p>\n
          C.R.P.NO.  1336 OF 2001@@
\n         j\n<\/p>\n
          ——————————–@@
\n         j
\n          @@
\n         j
\n          Dated this the 24th day of February, 2005.@@
\n         j               AAAAAAAAAAAAAAAAAAAAAAAAAAA
\n          @@
\n         j
\n          O R D E R@@
\n         jEEEEEEEEE<\/p>\n
.SP 2
\n((HDR 0
\nC.R.P.NOS.1975\/2000 & 1336\/2001<\/p>\n
 ::  # ::@@
\nj<\/p>\n
))
\n.HE 1
\n         \tThe  questions  of law arising for consideration
\n         in these revisions are:    (1)  Whether  the  Court  can
\n         invoke  Section  151  of  the Code of Civil Procedure to
\n         enforce the decree for injunction and to pass  an  order
\n         directing  delivery of the property to the decree holder
\n         from the judgment debtor who forcibly evicted the decree
\n         holder violating the decree; and  (2)  When  a  suit  is
\n         withdrawn  with liberty to file a fresh suit on the same
\n         cause of action, whether an order passed under  Rule  29
\n         of  Order XXI staying the execution of the decree, would
\n         revive on filing the fresh suit?\n<\/p>\n
         \t2.  The facts necessary for  disposal  of  these
\n         revisions are the following:  O.S.No.853 of 1968, on the
\n         file  of the Court of the Munsiff of Kozhikode was filed
\n         by A.P.Damodaran Namboodiri against his brother Krishnan
\n         Namboodiri  and  the  wife  and  children  of   Krishnan
\n         Namboodiri,   for  a  declaration  that  the  properties
\n         purchased as per Ext.A2 document dated 31.3.1933 in  the
\n         name of Krishnan Namboodiri were acquired benami for the
\n         plaintiff Damodaran Namboodiri.  There was also a prayer
\n         for  consequential injunction restraining the defendants
\n         from entering into the plaint schedule properties.   The
\n         suit was   decreed   on   23.12.1971.    The  defendants
\n         challenged that judgment  and  decree  in  A.S.No.44  of
\n         1972,  before  the  District  Court,  Kozhikode, but the
\n         appeal was dismissed on 4.12.1976.\n<\/p>\n
         \t3.   E.P.No.250  of 1981 was filed by the decree
\n         holder in O.S.No.853 of 1968 under Order XXI Rule 32 for
\n         taking action against the judgment debtors for violation
\n         of injunction.  That Execution Petition was dismissed on
\n         the ground that the first judgment debtor  had  obtained
\n         purchase  certificate  in his favour, issued by the Land
\n         Tribunal in O.A.No.84 of 1980.  The order in  E.P.No.250
\n         of  1981 was set aside by this Court in C.R.P.No.2391 of
\n         1983 and the matter was remanded to the executing court.
\n         Pending C.R.P.No.2391 of 1983, the  decree  holder  died
\n         and  his  son was impleaded as the legal representative.
\n         The  executing  court,  after  remand,   dismissed   the
\n         Execution   Petition  on  the  ground  that  the  Benami
\n         Transactions (Prohibition) Act came into force after the
\n         decree and the decree holder  is  not  entitled  to  the
\n         reliefs  in  the  Execution  Petition  in  view  of  the
\n         subsequent legislation.  Again, the decree holder had to
\n         approach this Court in C.R.P.No.1594 of 1989 challenging
\n         the order dismissing the Execution Petition.\n<\/p>\n
         \t4.    Meanwhile,  proceedings  before  the  Land
\n         Tribunal were going on, after the decree  in  O.S.No.853
\n         of 1968.    O.A.No.83 of 1980 was filed by the plaintiff
\n         and O.A.No.84 of 1980 was filed by the  first  defendant
\n         judgment   debtor,  for  purchase  of  the  property  in
\n         question under Section 72 B of the Kerala  Land  Reforms
\n         Act.  The Land Tribunal allowed the application filed by
\n         the  judgment  debtor  (O.A.No.84 of 1980) and dismissed
\n         the application filed by the decree holder (O.A.No.83 of
\n         1980).  Challenging those orders of the  Land  Tribunal,
\n         A.A.Nos.182  of  1983  and 183 of 1983 were filed before
\n         the Land Reforms Appellate  Authority.    The  Appellate
\n         Authority dismissed   both   the  appeals.    Two  Civil
\n         Revision Petitions were filed before  this  Court  under
\n         Section   103   of   the  Kerala  Land  Reforms  Act  as
\n         C.R.P.Nos.1043 of 1988 and 1044 of 1988.\n<\/p>\n
         \t5.   The  Civil  Revision  Petition filed by the
\n         decree holder challenging the  order  in  the  Execution
\n         Petition,  viz.,  C.R.P.No.1594  of  1989  and  the  two
\n         revisions arising out of the proceedings under the  Land
\n         Reforms  Act,  viz.,  C.R.P.Nos.1043 of 1988 and 1044 of
\n         1988, were disposed of by this Court by a  common  order
\n         dated 18.10.1994.  All the three revisions were allowed.
\n         The  judgments  of the Appellate Authority and orders of
\n         the Land Tribunal were set  aside  and  the  cases  were
\n         remanded to  the  Land  Tribunal.    The  order  of  the
\n         executing court which was impugned in  C.R.P.No.1594  of
\n         1989 was also set aside and the case was remanded to the
\n         executing court  for fresh disposal.  This Court held in
\n         C.R.P.No.1594  of  1989  that  the  Benami  Transactions
\n         Prohibition  Act  does  not apply to the case at all and
\n         therefore, the prayer of the decree holder could not  be
\n         rejected on that ground.  This Court held thus:  “In the
\n         nature  of  the  execution  petition  in this case where
\n         there is no prayer for recovery  of  possession  as  the
\n         decree  holder  is  held  already  in  possession of the
\n         property, it cannot  be  contended  that  the  execution
\n         petition is a `claim or action’ to recover property held
\n         benami  against the person in whose name the property is
\n         held.  ….   As  the  civil  court  had  already  found
\n         possession in favour of the decree holder, it is open to
\n         the  decree  holder  to  seek  action  against  judgment
\n         debtors  for  violation  of  the  decree  without  being
\n         affected  by  the  provisions of the Benami Transactions
\n         (Prohibition) Act, 1988.”  Though  the  judgment  debtor
\n         challenged  the  order  passed  by this Court before the
\n         Supreme Court in S.L.P.No.612 of 1995, the Supreme Court
\n         dismissed the Special Leave Petition by the order  dated
\n         25.3.1996.\n<\/p>\n
         \t6.  After remand  as  per  the  aforesaid  three
\n         Civil  Revision Petitions, the executing court passed an
\n         order  dated  7.12.1996  and  found  that  the  judgment
\n         debtors  have violated the decree in O.S.No.853 of 1968.
\n         Accordingly, the executing court passed an order for the
\n         arrest of the judgment debtors, Krishnan Namboodiri  and
\n         his  two  sons  Unnikrishnan  Nair  and  Vasudevan  Nair
\n         (defendants 1, 3 and 4),  and  for  their  detention  in
\n         civil prison   for  a  period  of  fifteen  days.    The
\n         executing court also ordered attachment of the  property
\n         belonging to the judgment debtors.\n<\/p>\n
         \t7.   Challenging  the order dated 7.12.1996, the
\n         judgment debtors filed C.R.P.No.2692 of 1996 before this
\n         Court, which was dismissed by the order dated 30.1.1997.
\n         This Court held in C.R.P.No.2692 of 1996 that the  stand
\n         taken  by  the  judgment  debtors would amount to wilful
\n         disobedience of the decree.  It was  also  noticed  that
\n         though  sufficient opportunity was given to the judgment
\n         debtors to obey the decree, they did not do  so.    This
\n         Court held thus:\n<\/p>\n
……………L…….T…….T…….T…….T…….T.J
\n……………L…….T…….T…….T…….T…….T.J
\n.SP 1
\n               \t“…   They also cannot be heard to
\n               say that despite the decree,  they  are  in
\n               possession.   The  stand taken by them will
\n               amount to wilful disobedience of the decree
\n               of the court below.  Sufficient opportunity
\n               was given to them to obey  the  decree  but
\n               they did  not do.  Even their present stand
\n               is disobeying  the  decree.    With   utter
\n               disregard  to  the  decree,  they cannot be
\n               heard to say that  they  have  a  right  to
\n               continue in possession.  …”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
        \t8.  Thereafter, Krishnan Namboodiri, his wife and
\n        children  filed  O.S.No.803  of  1997, on the file of the
\n        Court of the Munsiff of Kozhikode against the son of  the
\n        decree  holder  in  O.S.No.853  of 1968 for a declaration
\n        that the judgment and decree in O.S.No.853 of 1968  is  a
\n        collusive  decree  between  the  plaintiff\/ decree holder
\n        therein and the counsel for the defendants therein and to
\n        set aside the decree on the ground that it is  not  valid
\n        and binding  on  the  plaintiffs.  There is also a prayer
\n        for consequential injunction restraining  the  defendants
\n        from  enforcing  the decree in O.S.No.853 of 1968 against
\n        the plaintiffs and the plaint  schedule  property.    The
\n        first   plaintiff  in  O.S.No.803  of  1997  is  Krishnan
\n        Namboodiri, plaintiffs 2 and  3,  Unnikrishnan  Nair  and
\n        Vasudevan Nair, are his children and the fourth plaintiff
\n        is the wife of the first plaintiff.\n<\/p>\n
        \t9.  After  O.S.No.803  of  1997  was  filed,  the
\n        judgment  debtors  filed E.A.No.332 of 1997 in O.S.No.853
\n        of 1968 for stay of the proceedings in execution till the
\n        disposal of O.S.No.803 of  1997.    The  executing  court
\n        dismissed  E.A.No.332  of  1997 by order dated 17.3.1998.
\n        The   judgment   debtors   challenged   that   order   in
\n        C.R.P.No.930   of  1998  before  this  Court,  which  was
\n        disposed  of  by  order  dated  21.7.1998  (the  decision
\n        reported in 1998 (2) KLT 380).  This Court considered the
\n        scope and ambit of Rule 29 of Order XXI and held that the
\n        rule  is  not  an imperative one and that the Court has a
\n        discretion either to grant or refuse the same.  An  order
\n        under  Rule 29 is to be granted on the basis of the facts
\n        and circumstances of each case.  This Court further  held
\n        thus:\n<\/p>\n
……………L…….T…….T…….T…….T…….T.J
\n……………L…….T…….T…….T…….T…….T.J
\n.SP 1
\n               \t“…   On a perusal of the order of
\n               the Court below, I do not find,  the  Court
\n               has considered  all these facts.  Probably,
\n               the  petitioners  have  not  placed  before
\n               Court  the entire materials on the basis of
\n               which they want a stay.  I  think,  in  the
\n               circumstances   of   the   case   when  the
\n               petitioners are  directed  to  be  sent  to
\n               jail,  a  serious attention to the petition
\n               filed  by  the  petitioners  is  necessary.
\n               Hence,  I  set aside the impugned order and
\n               direct the  court  below  to  consider  the
\n               matter again.    The  parties  can  produce
\n               materials before  the  Court  below.    The
\n               Court  can  also  call  for  the records in
\n               O.S.No.853 of 1968 to satisfy itself as  to
\n               whether a stay has to be granted.  Till the
\n               matter  is  decided afresh, there will be a
\n               stay of executing the decree in  O.S.No.853
\n               of 1968.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
        \t10.   Thereafter,  by the order dated 15.10.1998,
\n        the executing court dismissed E.A.No.332 of 1997.  Again,
\n        the judgment debtors filed C.R.P.No.2265 of  1998  before
\n        this  Court  which was disposed of as per the order dated
\n        12.2.1999.  It was held  that  there  was  no  scope  for
\n        interference by  the  Revisional  Court.    However, this
\n        Court issued a direction to dispose of O.S.No.803 of 1997
\n        within a period of four months and the proceedings  under
\n        Order XXI Rule 32 were directed to be continued, but this
\n        Court directed that the order passed thereon shall not be
\n        implemented   till   the  disposal  of  the  suit,  viz.,
\n        O.S.No.803 of 1997.\n<\/p>\n
        \t11.   At  the time when C.R.P.No.2265 of 1998 was
\n        disposed of, O.S.No.803 of 1997 was  not  really  pending
\n        since it was dismissed for default.  Later, that suit was
\n        restored to file.  However, I.A.No.4682 of 1999 was filed
\n        by the  plaintiffs in O.S.  No.803 of 1997 for permission
\n        to withdraw the suit with liberty to file a fresh suit on
\n        the same cause of action.  The trial court  allowed  that
\n        prayer by   the   order  dated  24.9.1999.    Later,  the
\n        plaintiffs in O.S.No.803 of 1997 instituted a fresh  suit
\n        which  was  numbered  as  O.S.No.958  of  1999,  which is
\n        pending now.  The reliefs prayed  for  in  O.S.No.958  of
\n        1999  are  the  same as those prayed for in O.S.No.803 of
\n        1997.\n<\/p>\n
        \t12.   Meanwhile,  the  decree  holder  had  filed
\n        E.A.No.140 of 1997 in E.P.No.250 of 1981 in O.S.No.853 of
\n        1968 praying for an order to  deliver  the  shed  in  the
\n        decree  schedule  property  which  was unauthorisedly and
\n        illegally occupied by the judgment debtors  in  violation
\n        of the  decree.   The court below dismissed E.A.No.140 of
\n        1997 by the order dated 4.9.2000 holding  that  a  decree
\n        for prohibitory injunction cannot be executed by ordering
\n        delivery  of  the  decree  schedule  property or any part
\n        thereof and that Order XXI Rule 32 of the Code  of  Civil
\n        Procedure does  not apply at all to the case on hand.  It
\n        was also held by the  executing  court  that  the  decree
\n        holder  is  not  entitled to take shelter under the order
\n        passed by this Court in O.P.No.3347 of 1997  for  getting
\n        the relief in E.A.No.140 of 1997.  It is apposite to note
\n        here that the decree holder had filed O.P.No.3347 of 1997
\n        for police protection to enable the decree holder to take
\n        usufructs from  the decree schedule property.  This Court
\n        in the judgment dated 21.3.1997 held thus:\n<\/p>\n
……………L…….T…….T…….T…….T…….T.J
\n……………L…….T…….T…….T…….T…….T.J
\n.SP 1
\n               \t“…   In  such  circumstances  the
\n               petitioner  is  entitled  to protection for
\n               enjoyment of the property in question.   He
\n               can   take  usufructs  from  the  property.
\n               Respondents 5 to 8 or their  associates  or
\n               any  of  the  police men shall not obstruct
\n               the petitioner from taking  usufructs  from
\n               the property in question or the respondents
\n               5  to  8  shall  not  commit  waste  to the
\n               property.  Respondents 3 and 4 shall render
\n               adequate   police   protection    to    the
\n               petitioner   to  take  usufructs  from  the
\n               property  and  also  to  abate  any   waste
\n               committed  in the property by respondents 5
\n               to 8  or  at  their  instance.    But   the
\n               petitioner   shall   not  forcefully  evict
\n               respondents 5 to 8 if they are residing  in
\n               the  house  in the property on the basis of
\n               this direction for police protection.   For
\n               that  he  has  to  get  Ext.P5  implemented
\n               through the execution  court,  to  get  the
\n               residential building in possession.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        The executing court referred  to  the  judgment  of  this
\n        Court  and  said  that in spite of the observation in the
\n        judgment  of  this  Court  the  decree  holders  are  not
\n        entitled   to  pursue  their  remedy  as  prayed  for  in
\n        E.A.No.140 of 1997.   Before  considering  the  questions
\n        involved  in  these  cases, I must say that this approach
\n        made by the court below is not at  all  justified.    The
\n        executing court cannot sit in judgment over any direction
\n        or  even observation of this Court in a judgment rendered
\n        by it.  C.R.P.No.1336 of 2001  is  filed  by  the  decree
\n        holder  challenging  the  order of the executing court in
\n        E.A.No.140 of 1997.\n<\/p>\n
        \t13.  Subsequent to the order in C.R.P.No.2265  of
\n        1998,  the  executing  court  passed  another order dated
\n        8.2.2000 holding that the earlier order  dated  7.12.1996
\n        passed  by  the  executing  court  to detain the judgment
\n        debtors in civil prison has to be implemented.    Against
\n        that  order  dated  8.2.2000,  the  judgment debtors have
\n        filed C.R.P.No.1975 of 2000.\n<\/p>\n
        \t14.  Point  No.1:    Sri.K.Jagadisachandran Nair,@@
\n              EEEEEEEEEEEE
\n        learned counsel for the petitioners in  C.R.P.No.1975  of
\n        2000  (judgment  debtors)  contended  that  the executing
\n        court has no jurisdiction to pass an order  for  recovery
\n        of  possession  of  the property when the decree does not
\n        provide for such a relief.  He  contends  that  when  the
\n        judgment   debtors   disobey   a   decree  for  permanent
\n        prohibitory  injunction  passed  by  the  Court, the only
\n        remedy available to the decree holder is to file  a  suit
\n        for  recovery  of  possession  and  to regain possession.
\n        According to him,  the  other  remedy  available  to  the
\n        decree  holder  is  only  under Order XXI Rule 32 to take
\n        action against the judgment debtors as provided  therein.
\n        According to the counsel, any relief under Order XXI Rule
\n        32  does  not include an order for delivery of possession
\n        of the  property.     In   support   of   his   arguments
\n        Sri.Jagadisachandran  Nair cited the decisions in Nanu v.@@
\n                                                          EEEE
\n        Ammalukutty Amma (1962 KLT 223); Kuldip Singh v.   Charan@@
\n        EEEEEEEEEEEEEEEE                 EEEEEEEEEEEE      EEEEEE
\n        Singh  and  others  (AIR  1986  Delhi 297); Sundar Das v.@@
\n        EEEEEEEEEEEEEEEEEE                          EEEEEEEEEE
\n        Mulakh Raj and others (AIR 1981 Delhi 85)  and  in  Arjun@@
\n        EEEEEEEEEEEEEEEEEEEEE                               EEEEE
\n        Singh v.  Mohindra Kumar and others (AIR<\/a> 1964 SC 993).@@
\n        EEEEE     EEEEEEEEEEEEEEEEEEEEEEEEE<\/p>\n
        \t15.  Sri.K.I.Mayankutty Mather,  learned  counsel
\n        for the decree holders, on the other hand, contended that
\n        the  executing  court has ample power and jurisdiction to
\n        pass any order to see that the  decree  is  enforced  and
\n        implemented and  also obeyed by the judgment debtors.  He
\n        contended that even if the decree is only for a permanent
\n        prohibitory injunction, if the judgment  debtors  therein
\n        gain  possession  of  the  decree  schedule  property  by
\n        violating the decree, they are liable to be  expelled  by
\n        the  order of the executing court under Order XXI Rule 32
\n        or by invoking the inherent  power  of  the  Court  under
\n        Section 151 of the Code of Civil Procedure.  He contended
\n        that  a decree passed by the Court is liable to be obeyed
\n        and not violated and that the  Court  cannot  countenance
\n        any  technical  arguments, which would have the result of
\n        defeating the  decree  passed  by  it.    He  cited   the
\n        decisions in Ram Charan Sikdar v.  Sm.  Jogamaya Basu and@@
\n                     EEEEEEEEEEEEEEEEE     EEEEEEEEEEEEEEEEEEEEEE
\n        another  (AIR 1978 Calcutta 193); Hari Nandan Agrawal and@@
\n        EEEEEEE                           EEEEEEEEEEEEEEEEEEEEEEE
\n        another v.  S.N.Pandita and others  (AIR  1975  Allahabad@@
\n        EEEEEEE     EEEEEEEEEEEEEEEEEEEEEE\n<\/p>\n
        48); Magna  and  another v.  Rustam and another (AIR 1963@@
\n             EEEEEEEEEEEEEEEEEEE     EEEEEEEEEEEEEEEEEE
\n        Rajasthan 3); Sujit Pal v.  Prabir Kumar Sun  and  others@@
\n                      EEEEEEEEE     EEEEEEEEEEEEEEEEEEEEEEEEEEEEE
\n        (AIR  1986  Calcutta 220); Delhi Development Authority v.@@
\n                                   EEEEEEEEEEEEEEEEEEEEEEEEEEE
\n        Skipper Construction Co.  (P) Ltd.  and another ((1996) 4@@
\n        EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE
\n        SCC 622); Ajayakumar v.  Damayanthi<\/a> (2004  (2)  KLT  48);@@
\n                  EEEEEEEEEE     EEEEEEEEEE
\n        Century Flour Mills  Ltd.   v.  S.Suppiah and others (AIR@@
\n        EEEEEEEEEEEEEEEEEEEEEEEEE       EEEEEEEEEEEEEEEEEEEE
\n        1975 Madras 270); Parukutty Amma v.  Thankamma Amma<\/a> (1988@@
\n                          GGGGGGGGGGGGGG     EEEEEEEEEEEEEE
\n        (1) KLT 883); State of Orissa v.  Sudhansu  Sekhar  Misra<\/a>@@
\n                      EEEEEEEEEEEEEEE     EEEEEEEEEEEEEEEEEEEEEEE
\n        and  others  (AIR  1968  SC 647); Thukalan Poulo Avira v.@@
\n        EEEEEEEEEEE                       EEEEEEEEEEEEEEEEEEEE
\n        Mar Basselios Gheevarghese and another (AIR 1954  TRA.CO.@@
\n        EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE\n<\/p>\n
        117); Krishnan  v.    Joseph  Desouza<\/a>  (1985  KLT  1010);@@
\n              EEEEEEEE        EEEEEEEEEEEEEEE
\n        Mohammad v.  Mohammed Haji (1986 KLT  134);  Manohar  Lal@@
\n        EEEEEEEE     EEEEEEEEEEEEE                   EEEEEEEEEEEE
\n        Chopra v.  Raj Bahadur Rao Raja Seth Hiralal (AIR<\/a> 1962 SC@@
\n        EEEEEE     EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE
\n        527 and Hamsa v.  George (1995 (2) KLT 326).  The Supreme@@
\n                EEEEE     EEEEEE
\n        Court  in the decision in (1996) 4 SCC 622 (supra) relied
\n        on the decisions in Mohd.   Idris  v.    Rustam  Jehangir<\/a>@@
\n                            EEEEEEEEEEEEE        EEEEEEEEEEEEEEEE
\n        Bahuji ((1984)  4  SCC  216; Century Flour Mills Ltd.  v.@@
\n        EEEEEE                       EEEEEEEEEEEEEEEEEEEEEEEE
\n        S.Suppiah (AIR 1975 Madras 270)  and  in  Surjit  Pal  v.@@
\n        EEEEEEEEE                                 EEEEEEEEEEE
\n        Prabir Kumar Sun (AIR 1986 Cal.  220) wherein it was held@@
\n        EEEEEEEEEEEEEEEE
\n        that   where  the  defendant  forcibly  dispossessed  the
\n        plaintiff in violation of the  order  of  injunction  and
\n        took  possession  of  the  property,  the Court has ample
\n        jurisdiction to prevent the decree being flouted  and  to
\n        do  justice  to the parties by putting back the plaintiff
\n        in possession of the property.  It was held that:\n<\/p>\n
……………L…….T…….T…….T…….T…….T.J
\n……………L…….T…….T…….T…….T…….T.J
\n.SP 1
\n               \t“..  There is no  doubt  that  this
\n               salutary  rule  has to be applied and given
\n               effect to by this Court, if  necessary,  by
\n               overruling    any   procedural   or   other
\n               technical objections.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        In (1984) 4 SCC 216 (supra)  an  undertaking  made  by  a@@
\n           CCCCCCCCCCCCCCCC
\n        party  before the High Court was violated and the Supreme
\n        Court held that the High Court was justified  in  issuing
\n        appropriate   directions   to   remedy   the   breach  of
\n        undertaking in addition to the action taken for  contempt
\n        of the order passed by the Court.  In AIR 1975 Madras 270@@
\n                                              CCCCCCCCCCCCCCCCCCC
\n        (FB),  the  Full Bench of the Madras High Court held that@@
\n        CCCC
\n        Order 39 of the Code of Civil  Procedure  should  not  be
\n        considered  as  placing  any  limit  on  the scope of the
\n        inherent power under Section 151 which are wide  and  not
\n        subject to  any  limitation.    Where  in violation of an
\n        order of stay or injunction against  a  party,  something
\n        has been done in disobedience, it will be the duty of the
\n        Court,  as a policy, to set the wrong right and not allow
\n        the perpetuation of the wrong doing.  The inherent  power
\n        of  the  court will not only be available in such a case,
\n        but it is bound  to  be  exercised  in  the  interest  of
\n        justice.   The same view was taken in the decision in AIR@@
\n                                                              CCC
\n        1986 Cal.  220.  In AIR 1975 Allahabad 48, the  Allahabad@@
\n        CCCCCCCCCCCCCCC     CCCCCCCCCCCCCCCCCCCCC
\n        High  Court  was  dealing  with  a case where an order of
\n        temporary injunction was violated.  It was held that if a
\n        prohibitory injunction order is  violated  and  party  is
\n        dispossessed  by  wilful  disobedience  of the injunction
\n        order, the Court has inherent power to pass  such  orders
\n        as are necessary to do justice to the parties and to undo
\n        the wrong.  In AIR 1986 Calcutta 220, the case dealt with@@
\n                       EEEEEEEEEEEEEEEEEEEEE
\n        therein  was  one where an interim prohibitory injunction
\n        was granted and it was held that the  inherent  power  of
\n        the  Court  under  Section  151  can be invoked to remedy
\n        injustice caused by disobedience of the order  passed  by
\n        the Court.    The Rajasthan High Court also took the same
\n        view in AIR 1963 Raj.  3.  This  Court  in  the  decision@@
\n                CCCCCCCCCCCCCCCCC
\n        reported  in  2004  (2)  KLT 48 held that under Order XXI@@
\n                      CCCCCCCCCCCCCCCCC
\n        Rule 32  a  decree  for  prohibitory  injunction  can  be
\n        enforced as  in the case of a mandatory injunction.  This
\n        Court took note of the new explanation added to Order XXI
\n        Rule 32 CPC and held that the expression “act required to
\n        be done” appearing in sub-rule (5) of Rule 32 shall cover
\n        prohibitory injunction as well.  It  was  held  that  the
\n        introduction  of  the explanation to sub-rule (5) of Rule
\n        32 reveals the anxiety of the Parliament to  ensure  that
\n        the executing court is able to enforce obedience not only
\n        for  decrees  for  mandatory injunction, but also decrees
\n        for prohibitory injunctions.  In that decision, reference
\n        is made  to  the  decisions  in  Joseph  alias  Kochu  v.@@
\n                                         EEEEEEEEEEEEEEEEEEEE
\n        Makkaru Pillai  (AIR  1960  Ker.    127)  ; Evuru Venkata@@
\n        EEEEEEEEEEEEEE                              EEEEEEEEEEEEE
\n        Subbayya v.  Srishti Veerayya (AIR 1969  A.P.    92)  and@@
\n        EEEEEEEE     EEEEEEEEEEEEEEEE
\n        Y.Lakshmaiah v.  Esso  Eastern  Inc.  (AIR 1974 A.P.  32)@@
\n        EEEEEEEEEEEE     EEEEEEEEEEEEEEEEEEE
\n        where a different view was  taken  and  held  that  those
\n        decisions no longer hold good in view of the introduction
\n        of the explanation to Order XXI Rule 32.\n<\/p>\n
        \t16.  The decision in 1962 KLT 223 (supra) was not@@
\n                              CCCCCCCCCCCC
\n        brought to the notice of this Court while  rendering  the
\n        decision reported  in  2004 (2) KLT 48.  In 1962 KLT 223,
\n        this Court took the view that sub-rule (5) of Rule 32  of
\n        Order XXI does not apply to prohibitory injunction and it
\n        applies only to cases where an act is required to be done
\n        by the  decree.    For  the very same reasoning stated by
\n        this Court in the decision reported in 2004 (2) KLT 48 in
\n        respect of the decision in AIR 1960 Kerala 127, it is  to
\n        be held that 1962 KLT 223 is also no longer good law.\n<\/p>\n
        \t17.  There were conflicting  views  expressed  in
\n        various  decisions  of  different  High  Courts as to the
\n        applicability of Order XXI Rule 32 in respect of  decrees
\n        for prohibitory injunction.  Some of the High Courts took
\n        the view that sub-rule (5) of Rule 32 of Order XXI cannot
\n        be   invoked   to   enforce   a  decree  for  prohibitory
\n        injunction, while some other High Courts  took  the  view
\n        that  as  in the case of decree for mandatory injunction,
\n        sub-rule (5) of Rule 32 of Order XXI can be  invoked  for
\n        enforcing prohibitory  decrees as well.  The statement of
\n        objects and  reasons  to  the  Code  of  Civil  Procedure
\n        (Amendment)  Act,  2002 makes the position clear that the
\n        Explanation to Rule 32 was added  on  the  basis  of  the
\n        report  of Law Commission and that this amendment is only
\n        clarificatory in nature.   Therefore,  there  can  be  no
\n        doubt  that  sub-rule  (5) of Rule 32 of Order XXI can be
\n        applied and used to enforce and implement even  a  decree
\n        for prohibitory injunction.  With respect, I do not agree
\n        with  the  view taken by the Delhi High Court in AIR 1986
\n        Delhi 297 and in AIR 1981 Delhi 85.\n<\/p>\n
        \t18.   The  Travancore Cochin High Court had taken
\n        the view that Section 151 can be invoked for enforcing  a
\n        decree for perpetual injunction, in the decision reported
\n        in AIR 1954 TRA.CO.117 (supra).\n<\/p>\n
        \t19.  The decision relied on by  the  counsel  for
\n        the judgment debtors in AIR 1964 SC 993 does not apply to
\n        the facts  and  circumstances  of  this  case.    In that
\n        decision, the Supreme Court had taken the view that  when
\n        there  is  a  specific  provision  in  the  Code of Civil
\n        Procedure, the jurisdiction under Section 151  cannot  be
\n        invoked by  the  Court.    There  is no dispute that when
\n        there is a specific provision, recourse  to  Section  151
\n        cannot be  had.   When a specific provision is lacking to
\n        meet a particular contingency  to  enforce  a  decree  or
\n        order  of the Court, it is only just and proper to invoke
\n        the inherent power of the Court under  Section  151  CPC.
\n        In  1988  (1)  KLT  883 (supra), this Court took the view
\n        that Section 151 can be invoked to strike off the defence
\n        of a party who did not obey  the  orders  passed  by  the
\n        Court  in  making  herself  available  for  giving  thumb
\n        impressions for comparison by an expert.    In  1985  KLT
\n        1010,  it  was held that if a Court comes to a conclusion
\n        that a party by disobeying an order of a Court  has  done
\n        something  for  his own advantage to the prejudice of the
\n        other party, it is open to the Court under  its  inherent
\n        jurisdiction  to  bring  back  the  parties to a position
\n        where they originally stood as if the order passed by the
\n        Court has not been contravened.  It was also held in 1985
\n        KLT 1010, thus:\n<\/p>\n
……………L…….T…….T…….T…….T…….T.J
\n……………L…….T…….T…….T…….T…….T.J
\n.SP 1
\n               \t“Any action by which the process of
\n               the court is attempted to be  thwarted  has
\n               to be  viewed  seriously.    If an order of
\n               injunction is violated, that violation  has
\n               to  be  dealt  with  sternly and seriously,
\n               for, otherwise, it will undermine the  very
\n               basis of  the  Rules  of  Law.  There is no
\n               difference whether the  violation  pertains
\n               to  an  order,  or  to  an undertaking made
\n               before a court of law, which too will  have
\n               as  much effect as an interim injunction in
\n               such circumstances.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        In 1986 KLT 134 (supra), this Court took the view that an
\n        order  for  police  protection  can  be  granted  by  the
\n        Subordinate  Courts to enforce an order of injunction, by
\n        invoking the inherent power of the  Court  under  Section
\n        151 CPC.\n<\/p>\n
        \t20.   From  the principles of law mentioned above
\n        and the facts and circumstances of this case,  there  can
\n        be no doubt that the executing court was not justified at
\n        all in denying the relief for delivery of possession on a
\n        technical ground that a decree for prohibitory injunction
\n        cannot be enforced in the manner prayed for by the decree
\n        holder.   The decision of the executing court is patently
\n        illegal and without jurisdiction  which  requires  to  be
\n        corrected  by  this Court in the exercise of jurisdiction
\n        under Section 115 of the Code of Civil Procedure.\n<\/p>\n
        \t21.  A decree, an order or  direction  passed  or
\n        issued by  a Court is intended to be obeyed.  There is no
\n        justification for raising any technical argument  against
\n        the implementation  of  the  same.  If decrees and orders
\n        passed by the Courts are violated  or  disobeyed  without
\n        impunity  by  the parties to the suit or proceedings, the
\n        result would be lawlessness.  To protect the rule of  law
\n        and  to  see  that  the  decrees and orders passed by the
\n        Courts are obeyed and implemented, ample provisions  have
\n        been made  in  the  Code  of  Civil  Procedure.   All the
\n        contingencies cannot be foreseen by the law makers.    In
\n        appropriate  cases, when there is nothing which prohibits
\n        a particular course of action being taken, it  cannot  be
\n        said that the Court lacks its inherent power to implement
\n        its own decision or to prevent disobedience of its decree
\n        or  order  or  to  restore  the  parties  to the original
\n        position which they occupied before the  disobedience  or
\n        violation of  the  decree or order.  If the Courts do not
\n        have the said inherent power, the litigants would have no
\n        faith in Courts and they may resort  to  other  shortcuts
\n        than approaching  the  civil courts.  Judicial notice can
\n        be taken that the number of writ  petitions  being  filed
\n        before  this Court for police assistance for implementing
\n        the  orders  passed  by  the  Civil  Courts  are  on  its
\n        increase.   The  reason  may be that the machinery of the
\n        Subordinate Courts  in  implementing  their  decrees  and
\n        orders  is ineffective or inadequate in the point of view
\n        of the litigants.  It is also to be noted that the number
\n        of  writ  petitions  being  filed   before   this   Court
\n        complaining  of  police interference in civil disputes is
\n        also on the increase in recent years.  One  of  the  main
\n        reasons  for  such complaints is the illegal interference
\n        by the police in civil disputes.  One of the parties  may
\n        resort  to such practices since he hopes to get a speedy,
\n        though illegal and unjust, remedy.  This  points  out  to
\n        the  need for having a pragmatic approach to the question
\n        in the matter of effective implementation  and  execution
\n        of  the  decrees  and  orders passed by the civil courts.
\n        The executing courts are not expected to deny  relief  to
\n        the decree holders on hypertechnical grounds, which would
\n        tend to help the persons who suffered the decree or order
\n        in disobeying or violating such decrees or orders.\n<\/p>\n
        \t21.  Point  No.2:    The counsel for the judgment@@
\n              EEEEEEEEEEEE
\n        debtors contended that the decision in  C.R.P.No.2265  of
\n        1998  keeping in abeyance the proceedings under Order XXI
\n        Rule 32 till the disposal of O.S.No.803 of 1997 is  still
\n        available  to the judgment debtors, since they have filed
\n        another suit, viz., O.S.No.958 of 1999 on the same  cause
\n        of  action  as  in  O.S.No.803 of 1997 and that too after
\n        getting permission of the Court for withdrawing the  suit
\n        with liberty  to  file  a  fresh  suit.    In  short, the
\n        contention is that the direction issued by this Court  in
\n        C.R.P.No.2265  of 1998 to dispose of the suit, O.S.No.803
\n        of 1997, within a period of four months from the date  of
\n        the   order,   viz.,   12.2.1999,   may   not  have  much
\n        significance and that  thrust  is  to  be  given  to  the
\n        direction to keep in abeyance the proceedings under Order
\n        XXI  Rule  32  till the disposal of the suit to set aside
\n        the decree in O.S.No.853 of 1968.  I do  not  agree  with
\n        this contention   at  all.    This  Court  has  shown  an
\n        indulgence in the peculiar facts and circumstances of the
\n        case.  The first judgment debtor was aged 95 at the  time
\n        of disposal  of  C.R.P.No.2265 of 1998.  The direction to
\n        keep in abeyance the proceedings in execution  is  to  be
\n        taken  along  with the direction to dispose of O.S.No.803
\n        of 1997 within a period of four  months.    The  judgment
\n        debtors  should  have  co-operated  with the Court in the
\n        disposal of the suit within the stipulated period of four
\n        months.  Instead, they sought permission to withdraw  the
\n        case   with   liberty  to  file  a  fresh  suit,  thereby
\n        effectively defeated the direction issued by  this  court
\n        in C.R.P.No.2265  of  1998.  If the arguments advanced by
\n        the judgment debtors are to be accepted, it will lead  to
\n        an unpleasant  result.    A  direction was issued by this
\n        Court to dispose of the suit  within  four  months.    If
\n        permission  is granted to withdraw that suit with liberty
\n        to file a fresh suit on the same  cause  of  action,  the
\n        plaintiff  therein could very well institute a fresh suit
\n        within the period of limitation prescribed for the  same.
\n        In  some  cases,  the  period  of limitation may be three
\n        years or in some other cases twelve years.  If it  is  to
\n        be held that the direction issued in the revision to keep
\n        in  abeyance the execution proceedings is to be stretched
\n        even till the expiry of  the  period  of  limitation  for
\n        filing a fresh suit on the same cause of action, it would
\n        have  the  result  of making the direction issued by this
\n        Court to dispose of the suit within four  months  otiose.
\n        That   is   not  what  is  intended  while  disposing  of
\n        C.R.P.No.2265 of  1998.    The  judgment  debtors  having
\n        withdrawn the suit and instituted a fresh suit much after
\n        the  expiry  of  four months from the date of disposal of
\n        C.R.P.No.2265 of 1998, they are not entitled to  get  the
\n        execution   proceedings  to  be  kept  pending  till  the
\n        disposal of the fresh suit.\n<\/p>\n
        \t22.  When the plaintiff is granted permission  to
\n        withdraw  from the suit with liberty to institute a fresh
\n        suit in respect of the subject matter of such  suit,  the
\n        court granting such permission under sub-rule (3) of Rule
\n        1  of  Order  XXIII of the Code of Civil Procedure has no
\n        jurisdiction to keep alive any interim  order  passed  in
\n        the suit.   Seeking permission under sub-rule (3) of Rule
\n        1 of Order XXIII C.P.C.  is to institute  a  fresh  suit.
\n        The  suit  from  which  the  plaintiff  is  permitted  to
\n        withdraw comes to an end on the passing of an order under
\n        sub-rule (3) of Rule 1 of Order XXIII C.P.C..    A  fresh
\n        suit  instituted  after getting permission under sub-rule
\n        (3) of  Rule  1  of  Order  XXIII  C.P.C.    is   not   a
\n        continuation  of the suit originally filed; it is a fresh
\n        suit.  Rule 2 of Order XXIII C.P.C.  provides that in any
\n        fresh suit instituted on permission granted under Rule 3,
\n        the plaintiff shall be bound by the law of limitation  in
\n        the  same  manner  as  if  the  first  suit  had not been
\n        instituted.  This, of course, is  subject  to  subsection
\n        (3) of  Section  14  of the Limitation Act.  Exclusion of
\n        the period of limitation as provided in Section 14(3)  of
\n        the  Limitation  Act has no relevance on the consequences
\n        of an order passed under sub-rule (3) of Rule 1 of  Order
\n        XXIII of  the  Code of Civil Procedure.  It has relevance
\n        only on the computation of the period of  limitation  for
\n        filing the  fresh  suit.    The  only order that could be
\n        passed under sub-rule (3) of Rule 1 of Order XXIII C.P.C.
\n        is to grant permission to the plaintiff to withdraw  from
\n        the  suit  with liberty to institute a fresh suit, if the
\n        court is satisfied about the  existence  of  the  grounds
\n        mentioned in  that  sub-rule.    Of course, the court has
\n        jurisdiction to impose “such  terms  as  it  thinks  fit”
\n        while granting  such permission.  The expression “on such
\n        terms as it thinks fit” in sub-rule  (3)  of  Rule  1  of
\n        Order XXIII  C.P.C.  does not enable the court to pass an
\n        order keeping alive any interim order passed in the suit.
\n        The “terms” referred to therein are those to  be  imposed
\n        on  the  plaintiff as a condition for granting permission
\n        to withdraw from the suit with liberty to institute fresh
\n        suit.  Such “terms” do not include an order in favour  of
\n        the plaintiff  and  against  the defendant.  On the other
\n        hand, the terms to  be  imposed  are  in  favour  of  the
\n        defendant.  If no interim order would survive in the suit
\n        which  is  permitted  to  be  withdrawn, it can safely be
\n        concluded that an order of stay granted by the  executing
\n        court  under  Rule  29  of Order XXI of the Code of Civil
\n        Procedure staying the execution of the decree  sought  to
\n        be  set  aside in such suit would also not survive on the
\n        withdrawal of such suit.   I,  therefore,  hold  that  on
\n        withdrawal of O.S.No.803 of 1997, the direction issued by
\n        this  Court in C.R.P.No.2265 of 1998 not to implement any
\n        order in execution till the  disposal  of  O.S.No.803  of
\n        1997  would cease to exist and it would not revive on the
\n        institution of a fresh suit.\n<\/p>\n
        \t23.   Therefore,  it   is   to   be   held   that
\n        C.R.P.No.1975  of  2000  is  without  any merit and it is
\n        dismissed,  but  without   any   order   as   to   costs.
\n        C.R.P.No.1336  of  2001 is allowed and the order impugned
\n        is set  aside.    The  executing  court   shall   deliver
\n        possession  of the decree schedule property and the shed\/
\n        building\/house  therein  to  the  decree   holder   after
\n        removing  any obstruction caused by the judgment debtors,
\n        their agents or  servants.    The  judgment  debtors  are
\n        granted three months’ time to surrender possession of the
\n        shed\/building\/house   and  the  property  to  the  decree
\n        holders.   There  will  be  no  order  as  to  costs   in
\n        C.R.P.No.1336 of 2001.\n<\/p>\n
        \tIt  is  made  clear  that  the  observations  and
\n        findings contained in this order are made  only  for  the
\n        purpose  of the proceedings in execution of the decree in
\n        O.S.No.853 of 1968  as  well  as  for  dealing  with  the
\n        application filed by the judgment debtors under Order XXI
\n        Rule 29 and they shall have no bearing or relevance while
\n        disposing of O.S.No.958 of 1999, except in respect of the
\n        matters mentioned above.\n<\/p>\n
.SP 1
\n.JN
\n         \t\t\t\t    (K.T. SANKARAN)@@
\n             AAAAAAAAAAAAAAAAAAA
\n         \t\t\t\t\t   Judge@@
\n              AAAAAAAA<\/p>\n
         ahz\/
\n.PA
\n………L…….T…….T…….T…….T…….T…….T………J
\n((HDR 0<\/p>\n
))
\n.HE 2
\n.JN
\n.SP 2
\n         \t\t\t\t      K.T.SANKARAN, J.@@
\n                  AAAAAAAAAAAAAAAAA\n<\/p>\n
         \t\t\t\t—————————\n<\/p>\n
         \t\t\t\t—————————\n<\/p>\n
         \t\t\t\t  C.R.P. NO.  1975 OF 2000
\n         \t\t\t\t\t  and
\n         \t\t\t\t  C.R.P. NO. 1336 OF 2001.\n<\/p>\n
         \t\t\t\t        O R D E R<\/p>\n
         \t\t\t\t  24th February, 2005\n<\/p>\n
         \t\t\t\t—————————\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….T.J<\/p>\n
…..L…….T…….T…….T…….T…….T…….T…….T…….T…….T………………………………………..<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Thazhapattathillath Krishnan … vs T.Damodaran Namboodiri on 24 February, 2005 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRP No. 1975 of 2000 1. THAZHAPATTATHILLATH KRISHNAN NAMBOODIRI … Petitioner Vs 1. T.DAMODARAN NAMBOODIRI … Respondent For Petitioner :SRI.K.JAGADEESCHANDRAN NAIR For Respondent :SRI.V.V.ASOKAN The Hon’ble MR. Justice K.T.SANKARAN Dated : 24\/02\/2005 O R […]<\/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-231747","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThazhapattathillath Krishnan ... vs T.Damodaran Namboodiri on 24 February, 2005 - 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\/thazhapattathillath-krishnan-vs-t-damodaran-namboodiri-on-24-february-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thazhapattathillath Krishnan ... vs T.Damodaran Namboodiri on 24 February, 2005 - 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