Indira, Sajeev and Rajeev v. Sundaresan, Jagadamma, Suseela, Subhashini, Sakunthala, Somarajan, Sasidharan and Bindhu

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V. Chittambresh
Judgment Date: 2012-05-30
Court Decision / Holding: Ext.P6 order set aside. The Execution Court shall consider E.A.137/2010 in E.P.59/2009 jointly within 1 month from receipt of the judgment. The decree holder may file a fresh execution petition under Order XXI Rule 32(5) if required. All contentions remain open for the executing court to determine in accordance with law. The original petition is disposed of with no costs.
Final Disposition: Disposed of. No costs.

Parties to the Case

Appellants / Petitioners

Indira
Sajeev
Rajeev

Respondents

Sundaresan
Jagadamma
Suseela
Subhashini
Sakunthala
Somarajan
Sasidharan
Bindhu

Legal Representation & Advocates

Counsels for Petitioners

• Adv. R. Bindu (Sasthamangalam)
• Adv. Prasanth M.P

Counsels for Respondents

• Adv. Anchal C. Vijayan

Case Synopsis & Summary

This is an Original Petition (Civil) (OP(C)) filed in the Kerala High Court, arising from a boundary fixation suit O.S. No. 313 of 1990, Munsiff Court, Punalur, which was dismissed in the original suit and a counter-claim for injunction was decreed. The decree holder then moved execution petitions under Order XXI Rule 32 and related provisions (E.P. 59/2009 in O.S. 313/1990; E.A. 180/2009 and E.A. 137/2010). The petition challenges an order (Ext. P6) permitting the decree holder to cut and remove standing trees on the property. The court recalls the principle that a petition under Order 39 Rule 2A would not lie after decree, citing Narayani v. Thankappan (1991 (2) KLT 704), and notes that E.P. 59/2009 is still pending. The judge sets aside the impugned Ext. P6 order and directs the Execution Court to consider E.A. 137/2010 together with E.P. 59/2009 within one month, and clarifies that the decree holder may file a fresh Order XXI Rule 32(5) petition if necessary. The petition is disposed of with no costs, leaving all contentions open for the executing court to determine in accordance with law.

Provisions of Law Cited

Order XXI Rule 32 CPCOrder 39 Rule 2A CPCSection 151 CPCOrder XXI Rule 32(5) CPC

Legal Doctrines & Maxims

No petition under Order 39 Rule 2A lies after decree (Narayani v. Thankappan, 1991 (2) KLT 704)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contest the lower court's order permitting execution actions that would affect the standing trees and the manner of execution. They contend that execution for punishment of the judgment debtor or for cutting property should not be combined with the primary execution petition and that a separate petition under Order XXI Rule 32(5) is the proper route. They rely on the principle that petitions under Order 39 Rule 2A cannot lie after decree, as laid down in Narayani v. Thankappan, and argue that Ext. P6 should be set aside and the matter left for proper execution proceedings.

Contentions of Respondents

The respondents urge that the execution proceedings (E.P. 59/2009 and E.A. 137/2010) are part of the enforcement of the decree and that the court should consider them together. They argue that the decree holder is entitled to seek due execution and to pursue actions under Order XXI Rule 32. The respondents rely on the existing orders and executions to support enforcement, including E.A. 137/2010 to remove standing trees, within proper legal channels.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Narayani v. Thankappan	1991 (2) KLT 704	Positive	The court cites Narayani v. Thankappan to support the proposition that petitions under Order 39 Rule 2A cannot lie after a decree.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **WEDNESDAY, THE 30TH DAY OF MAY 2012/9TH JYAISHTA 1934** ## **OP(C).No. 1397 of 2011 (O)** **-------------------------------------OS.313/1990 of MUNSIFF COURT, PUNALUR .........................................................** **PETITIONER(S)/: --------------------------** ## **1. INDIRA,** **VEENA BHAVAN, KARAKKADU, PLACHERY P.O. VALAKKOD VILLAGE, PATHANAPURAM TALUK.** ## **2. SAJEEV,** **VEENA BHAVAN, KARAKKADU, PLACHERY P.O. VALAKKOD VILLAGE, PATHANAPURAM TALUK.** ## **3. RAJEEV,** **VEENA BHAVAN, KARAKADU, PLACHERY P.O. VALAKKODE VILLAGE, PATHANAPURAM TALUK.** **BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT(S):** **---------------------------** ## **1. SUNDARESAN,** **PALOTTUCHARUVILA PUTHENVEEDU, KALAYANADU VILLAGE VALAKKODE-691331.** **2. JAGADAMMA, PALOTTUCHARUVILA PUTHENVEEDU, KALAYANADU VILLAGE VALAKKODE-691331.** ## **3. SUSEELA,** **PALOTTUCHARUVILA PUTHENVEEDU, KALAYANADU VILLAGE VALAKKODE-691331.** ## **4. SUBHASHINI,** - **PALOTTUCHARUVILA PUTHENVEEDU, KALAYANADU VILLAGE VALAKKODE-691331.** **DCS** **OP(C).No. 1397 of 2011 (O)** ## **5. SAKUNTHALA,** **PALOTTUCHARUVILA PUTHENVEEDU, KALAYANADU VILLAGE VALAKKODE-691331.** ## **6. SOMARAJAN,** **PALOTTUCHARUVILA PUTHENVEEDU, KALAYANADU VILLAGE VALAKKODE-691331.** ## **7. SASIDHARAN,** **PALOTTUCHARUVILA PUTHENVEEDU, KALAYANADU VILLAGE VALAKKODE-691331.** ## **8. BINDHU,** **PALOTTUCHARUVILA PUTHENVEEDU, KALAYANADU VILLAGE VALAKKODE-691331.** **R1 TO R8 BY ADV. SRI. ANCHAL C. VIJAYAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** ## **OP(C).No. 1397 of 2011 (O)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** **EXHIBIT P1: COPY OF THE JUDGMENT PASSED BY THE DISTRICT COURT, KOLLAM IN A.S NO. 360/2006** - **EXHIBIT P2: COPY OF THE ORDER IN E.A. 180/2009 IN E.P. 59/2009 IN O.S. NO. 313/90 DATED 27.09.2010** - **EXHIBIT P3: COPY OF THE JUDGMENT DATED 24.11.2010 PASSED IN O.P.(C) 487/2010** - **EXHIBIT P4: COPY OF THE AFFIDAVIT AND PETITION FILED BY THE RESPONDENT DATED 29.10.2010** **EXHIBIT P5: COPY OF THE COUNTER AFFIDAVIT FLED BY THE PETITIONERS** **EXHIBIT P6: COPY OF THE ORDER DATED 03.03.2011 PASSED IN E.A. 137/2010** ## **RESPONDENTS' EXHIBITS :-** **EXHIBIT R1(a): COPY OF THE JUDGMENT PASSED BY THE MUNSIFF'S COURT PUNALUR IN O.S. NO. 313/1990 DATED 30.09.1997** - **EXHIBIT R1(b): COPY OF THE JUDGMENT DATED 15.03.2011 IN R.S. A. NO. 500/2009 OF THIS HON'BLE COURT** **EXHIBIT R1(c): COPY OF THE E.P. NO. 59/2009 FILED BY THE RESPONDENTS BEFORE THE MUNSIFF'S COURT, PUNALUR** **/TRUE COPY/** **P.A. TO JUDGE** **DCS** ## **V.CHITAMBARESH,J.** ====== = == = = = **O.P.(C) No.1397 of 2011** = = = = = = = == = = = Dated this the 30[th] day of May, 2012 **==> picture [128 x 14] intentionally omitted <==** The suit for fixation of boundary was dismissed and the counter claim for injunction was decreed. E.P.No.59 of 2009 was filed by the decree holder in the counter claim under Order XXI Rule 32 of the Code of Civil Procedure. E.A No. 180/2009 was filed in the said E.P under Order 39 Rule 2A of the Code of Civil Procedure. These two interlocutory applications were the subject matter of O.P.(C) No.487 of 2010 on the file on this Court. 2. This Court by Ext.P3 judgment held that the petition under Order 39 Rule 2A would not lie after decree. This is the law laid down in **Narayani vs. Thankappan (1991 (2) KLT 704)** . Therefore the evidence adduced in E.A No 180/2009 was directed to be considered in E.P. No.59 of 2009. It is conceded by the parties that E.P No.59 2 **O.P.(C) No.1397 of 2011** of 2009 is still pending in the execution court . **3.** The decree holder has again filed E.A.No.137/2002 purporting to be under Order XXI Rule 32 , Order 39 Rule 2A and Section 151 of the Code of Civil Procedure. The Court below has by the order impugned permitted the decree holder in the counter claim to cut and remove the standing trees thereon. This order passed in E.A No.137/2010 is impugned in this Original Petition under Article 227 of the Constitution of India. 4. E.P No.59 of 2009 filed under Order XXI Rule 32 of the Code of Civil Procedure is filed for punishing the Judgment Debtor for violating the decree. If the same decree has to be executed, the decree holder can as well invoke Order XXI Rule 32 (5) of Code of Civil Procedure . A separate execution petition has to be filed for the purpose of executing the decree as per its tenor. An execution application in an execution petition filed for punishing the judgment debtor is not the remedy. 5. I therefore set aside Ext.P6 order passed in E.A No.137/2010 in E.P No.59/2009 in O.S No.313/1990 on the **O.P.(C) No.1397 of 2011** 3 file of the Court of the Munsiff of Punalur. The Execution Court shall consider E.A.No.137 of 2010 along with E.P No.59/2009 jointly within a period of 1 month from the date of receipt of a copy of this judgment. The parties are also at liberty to adduce evidence to substantiate their contentions. 6. The decree holder in the counter claim is also entitled to file a fresh execution petition under Order XXI Rule 32(5) of the Code of Civil Procedure. All contentions available in execution are left open to be considered by the executing court in accordance with law. The original petition is disposed of as above. No costs. ## V.CHITAMBARESH. JUDGE smm # **O.P.(C) No.1397 of 2011** 4