Kerala High Court

Janardhanan vs Inasu on 26 September, 2024

CRP.No.283 of 2020                  1

                                                 2024:KER:72375
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

THURSDAY, THE 26TH DAY OF SEPTEMBER 2024 / 4TH ASWINA, 1946

                           CRP NO. 283 OF 2020

         AGAINST   THE    ORDER/JUDGMENT      DATED   17.02.2020    IN    OS

NO.137 OF 1993 OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB

COURT, IRINJALAKUDA

REVISION PETITIONERS:

     1       JANARDHANAN,AGED 51 YEARS,S/O. CHATHAKUDATH
             ARACKAL KALLYANI AMMA, ALENGADEN DESOM, KALLUR
             VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DIST.

     2       RAMAKRISHNAN,AGED 60 YEARS
             S/O. CHATHAKUDATH ARACKAL KALLYANI AMMA, ALENGADEN
             DESOM, KALLUR VILLAGE, MUKUNDAPURAM TALUK,
             THRISSUR DIST.


             BY ADV V.M.KRISHNAKUMAR
RESPONDENT:

             INASU,AGED 60 YEARS,S/O. KUNNAPUZHA ANTONY,
             VENDOOR DESOM, AMBALLUR VILLAGE, MUKUNDAPURAM
             TALUK, THRISSUR DIST. , PIN - 680 302.


             BY ADVS.
             SRI.K.S.BHARATHAN
             ALPHIN ANTONY
             AADITHYAN S.MANNALI
             VISAKH ANTONY
             ABEL ANTONY
             CHRISTINE MATHEW


      THIS    CIVIL      REVISION       PETITION   HAVING   COME   UP    FOR
ADMISSION ON 26.09.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 CRP.No.283 of 2020                  2

                                                           2024:KER:72375
                      VIJU ABRAHAM,J
                   -------------------
                   CRP.No.283 of 2020
             -------------------------------
        Dated this the 26th day of September, 2024

                               JUDGMENT

The above revision petition is filed

challenging the order in E.P.No.292 of 2015 in OS

No.137 of 1993 dated 17.2.2020 on the file of the

Additional Sub Court, Irinjalakuda whereby the

execution petition filed by the petitioners/decree

holders was rejected essentially holding that there

is a subsequent suit filed by the judgment debtors

for fixation of boundary and that without fixing

the eastern boundary of the decree holders property

the court cannot jump to the conclusion that the

judgment debtor has violated the decree of

injunction.

2. Petitioners contended that the petitioners

along with their mother late Kalyani Amma are the

owners in possession of the plaint schedule

properties 3 in number. In 1993, the defendant

tried to destroy the eastern boundary of the

petitioners plaint schedule property item No.1 and

2024:KER:72375 had removed the entire barbed fencing. Thereupon,

OS No.137/1993 was filed seeking injunction

restraining the defendant/respondent and his men

from trespassing into the plaint schedule item No.1

and from destroying or altering the eastern

boundary tress and boundary fence. A commission was

taken out, Ext.C1 report was filed along with

Ext.C1(a) plan. The said suit was decreed and

Ext.C1(a) plan was made part of the decree and

plaintiffs were granted a decree of perpetual

injunction restraining the respondent from

trespassing into any portion of plaint schedule

item No.1 lying on the western side of the boundary

shown in Ext.C1(a) plan and from destroying the

boundary or boundary trees. The said judgment and

decree was confirmed in appeal filed as AS No.399

of 2000 and also a second appeal was filed as RSA

No.122 of 2005. Even thereafter, there was

constant violation of the injunction and the

concrete wall put up by the petitioners was

destroyed. Thereupon, the present execution

petition was filed as EP No.292 of 2015 before the

2024:KER:72375 Sub Court, Irinjalakuda and a commission was

appointed and a report was filed on 21.10.2015. In

the said report, the commissioner clearly stated

that the matti trees and other trees are standing

in the fence in the same position and reported that

the concrete pillars which were planted in the

fence between the trees mentioned as 5,6,9 etc in

Ext C1 Commission Report are uprooted and

destroyed. At the time of enquiry, the 2nd

petitioner Ramakrishnan as well as another person,

named Babu, who is a worker were examined.

3. The learned senior counsel appearing for the

petitioners submits that the Trial Court dismissed

the execution petition based on totally wrong

reasoning, stating that the respondent herein had

filed another suit for fixation of boundary, and

only after fixation of boundary the exact

violation could be ascertained.

4. The respondent entered appearance through

counsel and submitted that the allegation that they

have violated the terms of the decree and have

removed the concrete poles is absolutely without

2024:KER:72375 any basis and the allegation against them is

without any bonafides. It is also contended that

the boundary reported in Ext.C1(a) sketch is not in

existence at present and the said boundary was not

based on the survey measurement. It is further

contended that the decree-holder after destroying

the eastern boundary trespassed and reduced almost

12 cents of property of the judgment debtor into

his possession and as per the title deed of decree

schedule item No.1 property it has only an extent

of 1.66 Acres, but now the decree holder is in

possession 1.78 Acres of land and after trespassing

into the property of the judgment debtor, the

decree-holder attempted to install concrete poles.

It is further submitted that no concrete poles were

reinstalled on 24.09.2015 and in Ext.C1(a) plan the

presence of concrete poles along the boundary is

not at all reported. It is also submitted that the

judgment debtor has instituted a suit for fixation

of boundary and therefore sought for dismissal of

the civil revision petition.

5. I have heard the rival contentions of both

2024:KER:72375 sides.

6. O.S. No. 137 of 1993 was filed by the

petitioners seeking permanent prohibitory

injunction to restrain the defendant and his men

from trespassing into plaint schedule item no.1 or

from destroying and alienating the existing eastern

boundary trees and boundary fence. The petitioners

have also sought for declaration of their joint

right and possession over item no.2 pathway and for

a mandatory injunction to restore the original

position of the destroyed boundary and for

realisation of damages for Rs.3500/-. O.S.No. 503

of 1993 was filed by the respondent who is the

defendant in O.S. No. 137 of 1993 seeking a

declaration that the pathway mentioned in item no.1

and provided as per partition deed no. 424/69 no

longer exists and has part and parcel of the

property of the plaintiff and that the defendants

have no right over the same and also for a

perpetual injunction restraining the defendant from

trespassing into the property and take income and

from committing any act of waste. Both the suits

2024:KER:72375 were tried together and O.S. No. 137 of 1993 was

decreed granting perpetual injunction restraining

the defendant from trespassing into any portion of

plaint schedule item no.1 lying on the western side

of boundary shown in Ext C1(a) plan and from

destroying the boundary or boundary trees and also

found that plaintiffs 1 and 2 are having the right

of passage through plaint schedule item no.2 to

enter item no.1. Plaintiffs were also allowed to

recover Rs. 3500/- as damages from the defendants.

The relief of mandatory injunction was declined.

Aggrieved by the same, appeal as well as second

appeal was preferred but both ended up in

dismissal. As per the decree, injunction was

granted restraining the defendant from trespassing

into any portion of plaint schedule item no.1 lying

on the western side of boundary shown in Ext C1(a)

plan. Therefore, while passing the decree, the

western side of the property was identified by the

appointment of an Advocate Commission who has

prepared Ext C1(a) plan. The allegation in

Annexure 7 Execution Petition filed as E.P. No. 2

2024:KER:72375 of 2015 is that the respondent has trespassed into

the property and has removed and destroyed the

concrete walls erected and sought for appointment

of an Advocate Commission and an Ameen to restore

the boundaries as shown in Ext C1(a) report and

plan which is destroyed by the respondents. The

sketch appended to Annexure 5 plan, i.e. C1(a)

plan, the western side boundary has been identified

and the said plan was made part of the decree. The

appeal and second appeal filed challenging the

judgment and decree also ended up in dismissal.

Advocate Commission was taken out in the execution

stage and it is reported that the concrete poles

erected in between the boundary trees were found to

be destroyed. The Execution Court dismissed the

application essentially finding that Ext C1(a) plan

was not based on any survey measurement and further

that it is the case of the respondent that it is

the decree-holder who has removed the concrete

poles and has encroached upon the property of the

judgment debtor and therefore a suit for fixation

of boundary has instituted by him and therefore,

2024:KER:72375 till the eastern boundary is fixed in the said

proceedings, the court cannot come to a conclusion

that there is violation of the decree of injunction

and therefore, the execution petition is not

maintainable.

7. The decree has been passed based on Ext C1(a)

report and plan and the appeals filed against the

same have also ended up in dismissal. The

petitioners who have obtained a decree in their

favour is entitled to enjoy the fruits of the

decree. Filing of a subsequent suit by the

judgment debtor for fixation of boundary alleging

that the decree-holder has destroyed the concrete

walls and has trespassed into the judgment debtor's

property cannot be a reason for not considering the

application for executing the decree obtained by

the petitioners in O.S. No. 137 of 1993. This

Court in Gopinathan Pillai V v. Rajappan and

Others, 2011 (2) KHC 508 has held that Sub Rule (5)

of Rule 32 of Order 21 CPC can be applied and used

to enforce and implement even a decree for a

prohibitory injunction. A similar view was taken

2024:KER:72375 by this Court in Ajayakumar v. Damayanthi, 2004 KHC

541 wherein paragraphs 7 and 8 reads as follows:

"7. The execution court has a duty to make every endeavour to ensure that the decree holder does secure the fruits of the decree. Courts render assistance of police and other officials in the matter of execution even in the absence of specific provisions in the Code authorising the same in discharge of such duty. The jurisdiction conferred on the civil courts as becomes clear from S.9 of the Code is almost unlimited in the matter of resolution of disputes of civil nature between persons. The litigants who approach the Civil Court are obliged to incur considerable expenditure by way of Court Fees, Pleader's fees Pleader's Clerk's charges and other miscellaneous expenditure and often have to wait for years before they obtain an executable decree. Though in a light vein it is said that O.21 the paradise of the judgment debtors and that the ordeal of the plaintiff commences after he obtains a decree. I find that notwithstanding CPC. Amendment Acts 46/99 and 22/02, S.47 remains intact and only two rules of O.21 have been amended. R.32 is significantly one of them. The change introduced in R.32 of O.21 is that a new explanation has been incorporated under which it is not clarified that the expression "act required to be done" appearing in sub-r(5) of R.32 shall cover prohibitory injunctions also. Thus it is possible now under O.21 R.32 to have even decrees for prohibitory injunction enforced to a practicable extent in the same way as decrees for mandatory injunctions. In other words, the decision in Joseph alias Kochu (supra), AIR 1960 Ker. 127, and the two decisions of the Andhra Pradesh High court referred to in the order of this Court in CRP No.402/94 no longer hold the field in so far as they relate to execution of prohibitory injunction decrees under sub-r(5) of R.32 of O.21. The introduction of the explanation to sub-r(5) of

2024:KER:72375 R.32 reveals the anxiety of the Parliament to ensure that the executing court is able to enforce obedience not only of decrees for mandatory injunctions but also decrees for prohibitory injunctions.

8. The problem now before me is simple. There is dispute between the judgment debtors and the decree holders as to whether the trees which admittedly have been cut and removed stood in the decree schedule properties or outside the same. The above dispute which is one of identity of the decree schedule properties has been raised for the first time before the executing court. The proper and effective method for resolving that dispute is by appointing a commission for the purpose of identifying the decree schedule property. The decree holders alone are not to blame for the delay which has been caused in the matter. At any rate, the delay from the side of the decree holders in the matter of seeking deputation of a commissioner is only to be condoned since a commission is very likely to enable the executing court to discharge its duty of ensuring the enforcement/execution of the decree."

8. In view of the above facts and circumstances,

I am of the view that the dismissal of the

Execution petition as not maintainable, especially

for the reason that there is a suit for fixation of

boundary instituted by the judgment debtor and only

on fixation of boundary in the said suit, actual

violations could be ascertained, cannot be

accepted. The question regarding encroachment by

the petitioners into the property of the respondent

and the request for fixation of boundary etc are to

2024:KER:72375 be considered in the said suit and the said aspect

cannot be a reason for dismissing the Execution