{"id":27796,"date":"2008-05-26T00:00:00","date_gmt":"2008-05-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/asha-vs-the-district-superintendent-of-on-26-may-2008"},"modified":"2016-04-18T00:34:25","modified_gmt":"2016-04-17T19:04:25","slug":"asha-vs-the-district-superintendent-of-on-26-may-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/asha-vs-the-district-superintendent-of-on-26-may-2008","title":{"rendered":"Asha vs The District Superintendent Of … on 26 May, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Asha vs The District Superintendent Of … on 26 May, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 9899 of 2008(C)\n\n\n1. ASHA, AGED 61 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE DISTRICT SUPERINTENDENT OF POLICE,\n                       ...       Respondent\n\n2. THE CIRCLE INSPECTOR OF POLICE,\n\n3. THE SUB INSPECTOR OF POLICE,\n\n4. K.P. GOPALAKRISHNA PILLAI,\n\n                For Petitioner  :SRI.P.B.SURESH KUMAR\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :26\/05\/2008\n\n O R D E R\n           K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ.\n                -----------------------------------------\n                         W.P.(C)No.9899 OF 2008\n            -----------------------------------------------------\n            DATED THIS THE 26th DAY OF MAY, 2008\n\n                            J U D G M E N T\n<\/pre>\n
Balakrishnan Nair, J.\n<\/p>\n
      The writ petitioner has approached this Court,         seeking the<\/p>\n
following relief:\n<\/p>\n
     ”      issue a writ of mandamus or any other<\/p>\n
     appropriate writ, direction or order commanding<\/p>\n
     respondents 1 to 3 to afford police aid for<\/p>\n
     implementing the direction of the court in Exhibit P7<\/p>\n
     and to maintain the compound wall to be constructed<\/p>\n
     through the process of the court as directed in Exhibit<\/p>\n
     P7 order.\n<\/p>\n
      2.    The brief facts of the case as stated by the petitioner, are<\/p>\n
the following.    The petitioner’s late husband owned 85 cents of land<\/p>\n
in Kollam Village. On his death, the same devolved upon herself and<\/p>\n
her children. The 4th respondent and his brother owned a property,<\/p>\n
which was lying on the southern side of the above 85 cents of land.<\/p>\n
The eastern boundary of that property was a road.           While the 4th<\/p>\n
respondent and his brother partitioned their property, the portion<\/p>\n
having road frontage was allotted to his brother. The said respondent<\/p>\n
 W.P.(C)No.9899 OF 2008
\n                                   2<\/span><\/p>\n
took the rear portion of the property, without providing any access to<\/p>\n
the road through his brother’s share. To have access to the road, the<\/p>\n
said respondent tried to demolish the compound wall of the property of<\/p>\n
the petitioner and cut open a pathway. So, the petitioner’s husband<\/p>\n
moved the Munsiff’s Court, Kollam, by filing O.S.No.193\/95. The said<\/p>\n
suit was decreed as per Exhibit P1, granting a decree of mandatory<\/p>\n
injunction, directing the 4th respondent to restore the demolished<\/p>\n
compound wall separating his property and the property of the<\/p>\n
petitioner.  The said decree has become final.        The petitioner’s<\/p>\n
husband filed E.P.No.171\/91 for executing the decree.       The court<\/p>\n
passed Exhibit P2 order dated 15.3.2001, directing the 4th respondent<\/p>\n
to restore the compound wall demolished by him and to remove the<\/p>\n
gate installed by him.    The relevant portion of the order reads as<\/p>\n
follows:\n<\/p>\n
            “From the above discussions I hold that Decree<\/p>\n
      Holder has succeeded to prove that the judgment debtor<\/p>\n
      has contumaciously violated the decree and therefore the<\/p>\n
      same is liable to be enforced by him. Judgment Debtor is<\/p>\n
      not entitled to use any portion of decree schedule as a<\/p>\n
      way. And he is directed to restore the compound wall<\/p>\n
      demolished by him and to remove the gate installed on<\/p>\n
W.P.(C)No.9899 OF 2008
\n                                   3<\/span><\/p>\n
      the wall within three weeks from this date.        In the<\/p>\n
      meanwhile there shall be attachment of the property<\/p>\n
      owned by Judgment debtor and on his failing to obey the<\/p>\n
      decree, the decree holder is allowed to restore the<\/p>\n
      compound wall to the original position and to remove the<\/p>\n
      gate at the cost and expenses of the judgment debtor<\/p>\n
      and his assets and by the sale of his properties. E.P.<\/p>\n
      posted for further steps.”\n<\/p><\/blockquote>\n
The 4th respondent challenged Exhibit P2, by filing C.R.P.No.1024\/01<\/p>\n
before this Court. It was dismissed as withdrawn on 19.7.2001.<\/p>\n
      3.    Since the 4th respondent did not obey the direction in<\/p>\n
Exhibit P2, the petitioner’s husband filed E.A.No.416\/01, to restore the<\/p>\n
demolished portion of the compound wall, by appointing an Advocate-<\/p>\n
Commissioner.      During the pendency of that application, the<\/p>\n
petitioner’s husband died and the petitioner and her children got<\/p>\n
themselves impleaded in the said E.A. The court allowed the said E.A.<\/p>\n
and appointed an Advocate-Commissioner, to implement the directions<\/p>\n
contained in Exhibit P2 order.    Exhibit P3 is the order in the E.A.<\/p>\n
Though the 4th respondent filed W.P.(C)No.32713\/04 before this Court,<\/p>\n
challenging Exhibit P3, the said writ petition was dismissed as<\/p>\n
withdrawn.    Later, the petitioner provided men and material and<\/p>\n
W.P.(C)No.9899 OF 2008
\n                                      4<\/span><\/p>\n
restored the compound wall by spending an amount of Rs.10,000\/-.<\/p>\n
While so, the 4th respondent and his supporters demolished the<\/p>\n
compound wall on 22.1.2005, which was constructed under the<\/p>\n
supervision of the Commissioner. So, again E.A.No.48\/05 was filed<\/p>\n
before the execution court. The court again ordered to restore the<\/p>\n
compound wall, as directed in Exhibit P3. The copy of the order in that<\/p>\n
E.A. is Exhibit P4. Again the petitioner was permitted to construct the<\/p>\n
compound wall through the process of the court. The relevant portion<\/p>\n
of the said order reads as follows:\n<\/p>\n
                “Therefore judgment debtor violated the<\/p>\n
          decree wilfully without any excuse.\n<\/p><\/blockquote>\n
          In the result, petition allowed as follows:<\/p>\n<\/blockquote>\n
          a)    Decree holders are permitted to construct the<\/p>\n
          compound wall in its original position through the<\/p>\n
          process of this court at the expense of judgment<\/p>\n
          debtor.\n<\/p><\/blockquote>\n
          b)    The   expense     to   be   incurred  for the<\/p>\n
          construction of the compound wall is liable to be<\/p>\n
          recovered from the judgment debtor and his<\/p>\n
          assets.<\/p><\/blockquote>\n
          c)    The expense incurred for the construction of<\/p>\n
W.P.(C)No.9899 OF 2008
\n                                    5<\/span><\/p>\n
         the compound wall on 2.1.2005 Rs.10,000\/- is also<\/p>\n
         liable to be recovered from the judgment debtor<\/p>\n
         and his assets.\n<\/p>\n
         d)     Decree holder is entitled to get the costs of<\/p>\n
         the petition.”\n<\/p>\n
     4.     Exhibit P4 order was challenged by the 4th respondent<\/p>\n
before this Court, by filing W.P.(C)No.4321\/08. The said writ petition<\/p>\n
was dismissed on 6.2.2008. The said judgment reads as follows:<\/p>\n
                  “This writ petition is preferred to set aside<\/p>\n
     Ext.P8 order and to defer the construction of the<\/p>\n
     compound wall in pursuance of Ext.P8 order. This is a<\/p>\n
     classical case which will demonstrate the disregard of a<\/p>\n
     party to the orders and judgments of the Courts.         A<\/p>\n
     perusal of the order passed by the learned Munsiff would<\/p>\n
     reveal that time and again the judgment debtor will<\/p>\n
     violate the order of the Court and if a wall is constructed<\/p>\n
     through the Court it will be demolished and I can give few<\/p>\n
     illustrations as is seen from the order.      The original<\/p>\n
     decree holder filed E.A.416\/01 and before that on<\/p>\n
     9.1.1996 there was an order to restore the compound<\/p>\n
     wall into its original position on 26.12.96. The judgment<\/p>\n
W.P.(C)No.9899 OF 2008
\n                                6<\/span><\/p>\n
   debtor and his relatives demolished a portion of the<\/p>\n
   compound wall. In E.A.416\/01 an application was made<\/p>\n
   for restoration of the compound wall through a<\/p>\n
   Commissioner which was allowed by the Court with the<\/p>\n
   assistance   of  the  police.    The  judgment    debtor<\/p>\n
   approached the High Court, though obtained an interim<\/p>\n
   stay later it was dismissed and thereafter the compound<\/p>\n
   wall was restored through the process of the Court on<\/p>\n
   22.1.05 also with a right to recovery of loss of<\/p>\n
   Rs.10,000\/-. Thereafter at 6.30 p.m. on the very same<\/p>\n
   day the relatives and men of the judgment debtor<\/p>\n
   gathered there and demolished the compound wall as it is<\/p>\n
   seen proved by Exts.C1 and C2.       There has been a<\/p>\n
   persistent and consistent move on the part of the<\/p>\n
   judgment debtor to nullify the decree that has been<\/p>\n
   granted by the Court. It is under such circumstances the<\/p>\n
   Court again permitted the decree holder to construct the<\/p>\n
   compound wall and also to recover the expenses<\/p>\n
   incurred. I do not find any ground to interfere with that<\/p>\n
   order.<\/p><\/blockquote>\n
         The prayer of the learned counsel for the writ<\/p>\n
W.P.(C)No.9899 OF 2008
\n                                   7<\/span><\/p>\n
      petitioner to stay operation of Ext.P8 order till the<\/p>\n
      disposal of I.A.655\/08 also cannot be entertained for the<\/p>\n
      reason that it is an application for setting aside the<\/p>\n
      exparte decree which has been passed long long back and<\/p>\n
      the matter has been adjudicated before the execution<\/p>\n
      Court on innumerable number of occasions. I do not find<\/p>\n
      any merit in this writ petition and therefore it is<\/p>\n
      dismissed.”\n<\/p>\n
When, pursuant to Exhibit P4, the Amin of the Munsiff’s Court<\/p>\n
attempted to restore the compound wall, he was obstructed by the 4th<\/p>\n
respondent and his men. The Amin reported the matter to the court<\/p>\n
and the court addressed the Superintendent of Police to give<\/p>\n
protection to enforce its order. Accordingly, with police protection, the<\/p>\n
compound wall was restored on 7.2.2008.        Again,   in the night of<\/p>\n
7.2.2008, the 4th respondent demolished the compound wall. So, the<\/p>\n
Police registered Exhibit P5 crime against him.         The petitioner,<\/p>\n
thereafter, filed E.A.No.156\/08 seeking necessary orders to restore the<\/p>\n
compound wall through the process of the court.         That application<\/p>\n
was allowed by Exhibit P7 and the Superintendent of Police was<\/p>\n
directed to render necessary Police assistance. The petitioner submits<\/p>\n
that because of political influence exerted on the Police, even in the<\/p>\n
 W.P.(C)No.9899 OF 2008
\n                                    8<\/span><\/p>\n
face of Exhibit P7, the Police did not extend any help to restore the<\/p>\n
compound wall.    So, she filed Exhibit P8 representation before the<\/p>\n
Police and thereafter this writ petition was filed, seeking the above<\/p>\n
quoted reliefs. This Court on 28.3.2008 passed the following interim<\/p>\n
order.\n<\/p>\n
               “Heard.   The facts of the case disclosed are<\/p>\n
         really distressing. The 4th respondent is repeatedly<\/p>\n
         flouting the orders of the Civil Court allegedly with<\/p>\n
         the connivance of the Police Officials. The petitioner<\/p>\n
         submits, as per Ext.P7 even though the execution<\/p>\n
         Court addressed the Police to render assistance to<\/p>\n
         the petitioner to put up the compound wall, the<\/p>\n
         Police have not taken any action.\n<\/p><\/blockquote>\n
               Having regard to the facts of the case, an<\/p>\n
         interim order as prayed for is issued. Having regard<\/p>\n
         to the special facts of the case, we propose to award<\/p>\n
         compensatory     costs    against  the   respondents<\/p>\n
         including the Police officials. They may show cause<\/p>\n
         why we may not pass such an order.”\n<\/p><\/blockquote>\n
Pursuant to the above direction, the police acted and with their<\/p>\n
protection, the compound wall was restored.\n<\/p>\n
 W.P.(C)No.9899 OF 2008
\n                                    9<\/span><\/p>\n
      5.    The 4th respondent has filed a detailed counter affidavit,<\/p>\n
resisting the prayers in the writ petition. The main point taken in the<\/p>\n
counter affidavit is that Exhibit P1 decree has been obtained by fraud.<\/p>\n
A purambokku pathway was shown as part of the property of the<\/p>\n
plaintiff and a decree has been obtained suppressing the material<\/p>\n
facts. The 4th respondent was using that pathway for several years<\/p>\n
and with the blocking of the pathway he has no access to go to the<\/p>\n
outside world. The 4th respondent also submitted that he is not a party<\/p>\n
to Exhibit P1 decree. He is K.P.Gopalakrishnan Nair, as evident from<\/p>\n
Exhibits R4(a) to R4(c) the documents produced by him. In Exhibit P1<\/p>\n
his name is shown as K.P.Gopalakrishna Pillai.      It is also submitted<\/p>\n
that he has filed O.S.No.689\/01 before the Munsiff’s Court seeking to<\/p>\n
declare his right over the pathway, which is described as plaint B<\/p>\n
schedule in that suit. He also prays for setting aside Exhibit P1 decree,<\/p>\n
stated to have been obtained by fraud. Now the purambokku pathway<\/p>\n
is treated by the survey officials as the property of the petitioner and<\/p>\n
mutation has been carried out in the survey records, relying on that<\/p>\n
fraudulent decree. As a result of the execution of the decree, the 4th<\/p>\n
respondent’s only access to go outside has been blocked and he and<\/p>\n
his wife are remaining in that house without any ingress and egress.<\/p>\n
The official respondents have filed a counter affidavit, denying the<\/p>\n
 W.P.(C)No.9899 OF 2008
\n                                    10<\/span><\/p>\n
allegations against them.     They have already rendered necessary<\/p>\n
protection, as directed in Exhibit P7, during the pendency of this writ<\/p>\n
petition, it is submitted.\n<\/p>\n
      6.      We heard the learned counsel on both sides.\n<\/p>\n
      7.      The learned senior counsel for the 4th respondent relied on<\/p>\n
the decision of the Apex Court in        S.P.Chengalvaraya Naidu v.<\/p>\n
Jagannath<\/a> (1994 (1) SCC 1) and submitted that Exhibit P1 decree,<\/p>\n
which was obtained by fraud, is void and the same can be attacked in<\/p>\n
execution proceedings and even collaterally. Therefore, this Court<\/p>\n
may not extend its helping hand to the petitioner, who is seeking the<\/p>\n
reliefs on the strength of a decree obtained by fraud by her husband, it<\/p>\n
is submitted.\n<\/p>\n
      8.      We notice that Exhibit P1 has become final. We also notice<\/p>\n
that in Exhibit P2, P3, P4, P6 and P7 orders, the 4th respondent was<\/p>\n
appearing      through   counsel,   wherein    he    was    described  as<\/p>\n
Gopalakrishna Pillai. In C.R.P.No.1024\/2001, he had described himself<\/p>\n
as Gopalakrishna Pillai. If Exhibit P1 was obtained by fraud, the 4th<\/p>\n
respondent should establish the same in appropriate proceedings.<\/p>\n
Though he has filed a suit seeking reliefs against Exhibit P1, there is<\/p>\n
no interim order in that suit.     It is true, if the 4th respondent feels<\/p>\n
that the decree was obtained by fraud, he can resist the same in the<\/p>\n
 W.P.(C)No.9899 OF 2008
\n                                    11<\/span><\/p>\n
execution proceedings. In the orders passed in the execution petition<\/p>\n
and execution applications, he could have raised those contentions.<\/p>\n
But the challenges attempted against those orders before this Court<\/p>\n
were already repelled.\n<\/p>\n
      9.    The writ petitioner approached this Court, since the Police<\/p>\n
did not extend necessary help to execute the decree on the basis of<\/p>\n
Exhibit P7 order of the Civil Court. When Exhibit P7 order is received,<\/p>\n
the Police have a duty to act as requested therein. The Police have<\/p>\n
failed to do that. Therefore this writ petition is filed, seeking a writ of<\/p>\n
mandamus against the police. We feel that it is quite inappropriate for<\/p>\n
the 4th respondent to set up a plea of nullity of the decree in this case.<\/p>\n
He could have set up that plea before the court below or in the<\/p>\n
proceedings before this Court, challenging the orders of the court<\/p>\n
below.    The police cannot look into that contention or accept that<\/p>\n
contention. As we have repeated in several other cases, this Court, in<\/p>\n
the police protection jurisdiction is concerned only with the failure of<\/p>\n
duty of the police enjoined upon them by the statutes.          Since the<\/p>\n
Police do not have any duty to accept the contention concerning the<\/p>\n
validity of Exhibit P1, we cannot also go into the validity of Exhibit P1,<\/p>\n
raised collaterally before us in this writ petition. Therefore, the said<\/p>\n
contention of the 4th respondent is overruled. If the 4th respondent has<\/p>\n
 W.P.(C)No.9899 OF 2008
\n                                     12<\/span><\/p>\n
any grievance, he has to take recourse to other remedies under law.<\/p>\n
He has already invoked one of the remedies available to him, by filing<\/p>\n
a suit. But, instead of obtaining appropriate orders in that suit, he<\/p>\n
cannot take law into his hand and physically prevent the execution of<\/p>\n
the decree, which has become final. That is what is attempted in this<\/p>\n
case and therefore the Civil Court, by Exhibit P7 addressed the police<\/p>\n
to enforce its orders. Since the Police failed to do that, we are fully<\/p>\n
justified in issuing the direction as prayed for by the petitioner.<\/p>\n
       Therefore, the writ petition is allowed. The Police shall render<\/p>\n
necessary protection for maintenance of the compound wall already<\/p>\n
constructed. But this direction will be subject to any orders of the<\/p>\n
competent civil court concerning the matter.         In other words, this<\/p>\n
judgment will not stand in the way of the 4th respondent to pursue his<\/p>\n
claims and rights before the civil court. Having regard to the facts of<\/p>\n
the case, the petitioner is entitled to get costs from the 4th respondent,<\/p>\n
which is quantified as Rs.10,000\/- (Rupees Ten Thousand only).<\/p>\n
                                K.BALAKRISHNAN NAIR, JUDGE.\n<\/p>\n<\/p>\n
                                      M.C.HARI RANI, JUDGE.\n<\/p>\n
dsn<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Asha vs The District Superintendent Of … on 26 May, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 9899 of 2008(C) 1. ASHA, AGED 61 YEARS, … Petitioner Vs 1. THE DISTRICT SUPERINTENDENT OF POLICE, … Respondent 2. THE CIRCLE INSPECTOR OF POLICE, 3. THE SUB INSPECTOR OF POLICE, 4. […]<\/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-27796","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAsha vs The District Superintendent Of ... on 26 May, 2008 - 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\/asha-vs-the-district-superintendent-of-on-26-may-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Asha vs The District Superintendent Of ... on 26 May, 2008 - 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