Kerala High Court
Ravi vs P. Surendran on 25 September, 2024
2024:KER:71544
O.P.(C). No.2032 of 2024 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
OP(C) NO. 2032 OF 2024
AGAINST THE ORDER DATED 31.08.2024 IN EP 194/2023 IN OS
NO.449 OF 2019 OF MUNSIFF COURT, MUVATTUPUZHA
PETITIONER/JUDGMENT DEBTORS:
1 RAVI
AGED 64 YEARS
S/O. KRISHNAN, OZHAKKANATTU HOUSE, RAMANGALAM KARA,
MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT, PIN - 686663
2 USHA
AGED 65 YEARS
W/O. RAMANAN, OZHAKKANATTU HOUSE, RAMANGALAM KARA,
MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT, PIN - 686663
3 ALLY
AGED 55 YEARS
W/O. VIJAYAN, OZHAKKANATTU HOUSE, RAMANGALAM KARA,
MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT, PIN - 686663
4 MINI
AGED 50 YEARS
D/O. KRISHNAN, OZHAKKANATTU HOUSE, RAMANGALAM KARA,
MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT PIN-, PIN - 686663
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O.P.(C). No.2032 of 2024 :2:
5 SAJI
AGED 49 YEARS
S/O. KRISHNAN, OZHAKKANATTU HOUSE, RAMANGALAM KARA,
MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT, PIN - 686663
6 NANI
AGED 87 YEARS
W/O. KRISHNAN, OZHAKKANATTU HOUSE, RAMANGALAM KARA,
MARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT, PIN - 686663
BY ADVS.
BOBBY MATHEW KOOTHATTUKULAM
ADHITHYA K.
RESPONDENT/DECREE HOLDER:
P. SURENDRAN
AGED ABOUT 76 YEARS, S/O. PAPPU, OZHAKKANATTU
HOUSE, RAMANGALAM KARA, MARADY VILLAGE,
MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN -
686663
BY ADVS.
C.DILIP
JIJO JOSEPH(K/2758/1999)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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O.P.(C). No.2032 of 2024 :3:
VIJU ABRAHAM, J.
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O.P.(C) No.2032 of 2024
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Dated this the 25th day of September 2024
JUDGMENT
The petitioners have approached this Court challenging
Ext.P15 order and for other consequential reliefs.
2. The petitioners are the Judgment debtors in E.P.No.
194/2023 in O.S.No.449/2019 on the files of the Munsiffs Court,
Muvattupuzha. The respondent is the decree holder in the E.P. The
suit was filed for fixing the southern boundary of C schedule
property separating with E Schedule property of the petitioners
who are the defendants 8 to 13 in the suit and for the other reliefs.
The trial court decreed the suit to fix the southern boundary of
plaint C schedule property separating with plaint E schedule
property as A, B, C, D line as shown in Ext.C2(b) plan. Ext.P4
execution petition was filed as E.P.No.194/2023, wherein it is
specifically contended that on 28.11.2023, the judgment debtors
along with their men trespassed into decree C schedule property
and destroyed the boundary stones fixed by Amin and Taluk
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Surveyor and that they have constructed barbed wire fencing
through the eastern portion of decree C schedule property by
trespassing upon plaint C schedule property and thus the judgment
debtors have willfully violated the decree of permanent prohibitory
injunction passed by the Court.
3. The learned counsel appearing for the petitioners submits
that in the counter affidavit filed by the respondent/decree holder
in E.A.No.12/2024 in E.P.No.194/2023, it is stated that on
28.11.2023 the judgment debtors constructed barbed wire fencing
connecting points 16, 17, 18 and 2 and the same was in existence
on 16.12.2023 ie, at the time of visiting of commissioner and
surveyor and thereafter the judgment debtors removed the fencing
through the line connecting point Nos.16, 17, 18 and 2 in the
survey plan. Based on the same it is the contention of the learned
counsel for the petitioners that since it is admitted case of the
decree holder that the judgment debtors have later removed the
fencing through the line connecting points 16, 17, 18 and 2 in the
survey plan, nothing survives in the execution petition.
4. On the contrary the learned counsel appearing for the
respondent took me to Ext.P6 Commission report, which was
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prepared based on the survey conducted on 16.12.2023, wherein it
has been specifically noticed by the Commissioner that the poles
have been removed in the points noted as 2 and 3 and in point no. 2
it was also found that the barbed wire fencing was put by the
judgment debtors encroaching upon decree C schedule property
and it was contended that the violations complained of has not
been fully removed.
5. By Ext.P15 order, the execution court has only taken a
stand that only after adducing evidence the question of violation
and other disputes of both sides could be decided and it is
necessary to examine the Advocate Commissioner and Taluk
Surveyor and thereupon summons was issued to the witnesses.
After hearing both sides, taking into consideration the specific
assertion made by the learned counsel appearing for the
respondent that the violations complained of has not been fully
removed and the execution petition has to be proceeded further
and by Ext.P15 order, the court has only issued notice to the
Advocate Commissioner and Taluk Surveyor for the examination so
as to decide that there is any violation as complained of by the
judgment debtor, I find no reason to interfere with Ext.P15.
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Thereupon the learned counsel appearing for the petitioners
submits that the petitioners have filed certain applications
including petitions for setting aside the commission report etc.,
which is pending consideration before the execution court. It is for
the petitioners to apprise the court about the filing of the same and
an appropriate decision on the same shall be taken by the
execution court in accordance with law.
With the above said observation, the original petition is
disposed of. The learned counsel for the petitioners submits that
the case has now been posted for evidence on 28.09.2024 and some
breathing time may be granted for getting ready for evidence and
also to request the court to consider the petitions filed by the
petitioner in the execution petition. To enable the same, it is
ordered that the trial court shall adjourn the examination of the
witness proposed, to 05.10.2024.
Sd/-
VIJU ABRAHAM
JUDGE
sm/
2024:KER:71544
APPENDIX OF OP(C) 2032/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPROMISE DECREE DATED
22.07.2023 IN A.S NO. 12/2023 PASSED BY
THE SUB COURT MUVATTUPUZHA
Exhibit P2 TRUE COPY OF THE DELIVERY REPORT DATED
22.11.2023
Exhibit P3 TRUE COPY OF E.P NO. 75/2024 DATED
31.07.2024 FILED BEFORE THE MUNSIFF
COURT, MUVATTUPUZHA
Exhibit P4 TRUE COPY OF THE EXECUTION PETITION FILED
IN E.P NO. 194/2023 DATED 04.12.2023
Exhibit P5 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONERS TO EXHIBIT-P4 PETITION DATED
05.02.2024
Exhibit P6 TRUE COPY OF THE EX- PARTE COMMISSION
REPORT DATED 04.07.2024 ALONG WITH THE
SURVEY PLAN
Exhibit P7 TRUE COPY OF THE OBJECTION DATED
05.08.2024 TO EXHIBIT-P6 FILED BY THE
PETITIONERS DATED 05.08.2024
Exhibit P8 TRUE COPY OF E.A NO. 12/2024 DATED
05.08.2024 FILED BY THE PETITIONERS TO
SET ASIDE EXHIBIT-P6 COMMISSION REPORT
Exhibit P9 TRUE COPY OF THE COUNTER AFFIDAVIT DATED
21.08.2024 FILED BY THE RESPONDENT/DECREE
HOLDER TO EXHIBIT-P8 PETITION
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Exhibit P10 TRUE COPY OF THE REPLY AFFIDAVIT FILED BY
THE PETITIONERS TO EXHIBIT-P9 COUNTER
AFFIDAVIT DATED 27.08.2024
Exhibit P11 TRUE COPY OF E.A NO. 11/2024 DATED
05.08.2024 FILED BY THE PETITIONERS FOR
LOCAL INSPECTION BY THE EXECUTION COURT
Exhibit P12 TRUE COPY OF E.A NO. 8/2024 DATED
05.08.2024 FILED BY THE PETITIONERS FOR
JOINT TRIAL
Exhibit P13 TRUE COPY OF E.A NO. 13/2024 DATED
05.08.2024 FILED BY THE PETITIONERS TO
ACCEPT THE LIST OF WITNESSES AND THE
ACCOMPANYING LIST OF WITNESSES
Exhibit P14 TRUE COPY OF E.A NO. 14/2024 DATED
27.08.2024
Exhibit P15 TRUE COPY OF THE ORDER OF THE MUNSIFF
COURT DATED 31.08.2024 IN E.P NO.
Exhibit P16 TRUE COPY OF COUNTER AFFIDAVIT DATED
10.11.2023 FILED BY ADVOCATE JOSHY JOSEPH
IN I.A. NO. 3/2023 IN R.P. I.A NO.
16/2023 IN A.S NO. 12/2023 BEFORE THE SUB
COURT, MUVATTUPUZHA
