Jameskutty Jacob v. K.P. Thressiyamma and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938** **OP(C).NO. 2374 OF 2013 (O)** **---------------------------** **(E.A. NO.94 OF 2013 IN E.P. NO.29 OF 2013 IN O.S. NO.8 OF 1992, SUB COURT, SULTHAN BATHERY)** **PETITIONER(S)/PEITIONER: ------------------------** **JAMESKUTTY JACOB S/O CHACKO, AGED 48 YEARS, CHERATTIYIL VADAKKEKUTTY, KUNNATHIDAVAKA AMSOM DESOM VYTHIRI TALUK REP. BY HIS POWER OF ATTORNEY HOLDER JOSEKUTTY JAMES S/O. CHACKO AGED 54 YEARS, CHERATTIYIL, VADAKKEKUTTY KUNNATHIDAVAKA AMSOM DESOM, VYTHIRI TALUK VYTHIRI P.O., WAYANAD DISTRICT-PIN:673 576.** **BY ADVS.SRI.K.BABU THOMAS** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. K.P.THRESSIYAMMA W/O MAKKOLI MATHEW, MAKKOLI HOUSE, CHERATTY OLD VYTHIRI, VYTHIRI P.O., WAYANAD DISTRICT PIN:673 576.** **2. THANKACHAN MATHEW S/O MAKKOLI MATHEW, MAKKOLI HOUSE, CHERATTY OLD VYTHIRI, VYTHIRI P.O., WAYANAD DISTRICT PIN:673 576.** ## **3. JOSEPH MALEKARAN** **S/O THOMAS, H/O JESSY MATHEW, D/O MAKKOLI MATHEW MAKKOLI HOUSE, VYTHIRI TALUK KUNNATHIDAVAKA AMSOM DESOM CHERATTY, OLD VYTHIRI VYTYIRI P.O., WAYANAD DISTRICT, PIN:673 576.** **R1-R3 BY ADV. SRI.V.V.SURENDRAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.01.2017, THE COURT ON 24.01.2017, DELIVERED THE FOLLOWING:** **OP(C).NO. 2374 OF 2013 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **------------------------** **EXHIBIT P1: TRUE COPY OF JUDGMENT IN OS NO.8 OF 1992 OF THE SUB COURT, SULTAN BATHERY.** **EXHIBIT P2: TRUE COPY OF JUDGMENT IN R.S.A NO.200 OF 2005 PASSED BY THIS HON'BLE COURT.** **EXHIBIT P3: TRUE COPY OF REPORT OF THE AMEEN FOR DELIVERY OF POSSESSION OF DECREE SCHEDULE PROPERTY.** **EXHIBIT P4: TRUE COPY OF E.P.NO.29 OF 2013 FILED BY THE PETITIONER BEFORE THE SUB COURT, SULTHAN BATHERY.** **EXHIBIT P5: TRUE COPY OF E.A.NO.94 OF 2013 IN E.P.NO.29 FO 2013 BEFOR ETHE SUB COURT, SULTHAN BATHERY.** **EXHIBIT P6: TRUE COPY OR ORDER PASSED IN E.A.NO.94 OF 2013 IN E.P.NO.29 OF 2013 BY THE SUB COURT, SULTHAN BATHERY DISMISSING THE SAME.** **EXHIBIT P7: TRUE COPY OF A.S.NO.12 OF 2013 FILED BY THE PETITIONER BEFORE THE DISTRICT JUDGE'S COURT, WAYANAD.** **EXHIBIT P8: TRUE COPY OF JUDGMENT IN A.S.NO.12 OF 2013 PASSED BY THE DISTRICT JUDGE'S COURT, WAYANAD.** **RESPONDENT(S)' EXHIBITS: NIL** **------------------------** **/TRUE COPY/** **P.S. TO JUDGE** ## **SATHISH NINAN, J.** **=================================== O.P(C) No.2374 of 2013 =================================== Dated this the 24[th] day of January, 2017** ## **J U D G M E N T** The petitioner filed O.S. No.8 of 1992 before the Subordinate Judge's Court, Sultan Bathery, for recovery of possession and prohibitory injunction against trespass. The suit was decreed as per Ext.P1 judgment dated 29.02.2000. The judgment and decree were challenged by the defendant before the Additional District Court, Kalpetta in A.S. No.8 of 2000 which was dismissed. Challenging the said judgment, Second Appeal was filed before this Court as RSA No.200 of 2005 which came to be dismissed as per judgment dated 24.07.2012. Though the defendants approached the Apex Court, they were not successful. Thereafter, in E.P 100 of 2003, the decree was executed and the property with the building thereon bearing No.352 in Ward No.VII of Vythiri Panchayat was delivered over to the decree holder on 11.02.2013. The delivery is evidenced by Ext.P3 delivery **O.P(C) No.2374 of 2013** ## **-: 2 :-** kaichit. 2. Alleging that after the delivery, on 11.03.2013, the respondents/judgment debtors again trespassed into the building situated in the plaint schedule property, the decree holder filed E.P. No.29 of 2013 and E.A. No.94 of 2013. The prayer in the execution petition was for arrest of the respondents for violation of the decree and judgment, and also for damages. In E.A. No.94 of 2013 the prayer sought for was to cause arrest and removal of the respondents from the building situated in the plaint schedule property. Though time was granted to the defendants to file objection, no objection was filed and they were set ex parte. However, the court below as per the impugned order dismissed the E.A. holding that the decree in O.S. No.8 of 1992 was executed and delivery was effected, that subsequent trespass if any into the decree schedule **O.P(C) No.2374 of 2013** ## **-: 3 :-** property in O.S. No.8 of 1992 would not confer any right on the decree holder to further execute the decree which has already been satisfied. The order dated 10.04.2013 dismissing E.A. No.94 of 2013 was challenged by the petitioner/decree holder before the District Court, Wayanad in A.S. No.12 of 2013. As per judgment dated 12.06.2013 (Ext.P8), the appeal was dismissed confirming the order passed by the court below and further observing that the order impugned therein is not appealable under Order XLI, Rule 1 of the Code of Civil Procedure. It is thereupon that the present Original Petition is preferred by the petitioner/decree holder in O.S. No.8 of 1992. The facts as above, are not in dispute. 3. Learned counsel for the respondents/defendants would contend that the decree for recovery of possession was already executed and the decree was satisfied. The **O.P(C) No.2374 of 2013** **-: 4 :-** second execution petition could not be maintained alleging subsequent trespass by the respondents. It is contended that the subsequent trespass only gives rise to a fresh cause of action, enabling the petitioner/plaintiff to file a fresh suit if he so chooses. It is further contended that though in the suit O.S. No.8 of 1992 a decree for prohibitory injunction against trespass was also sought for, as seen from the decretal portion of the judgment, there is no decree for prohibitory injunction. According to the learned counsel, execution petition has been filed by the petitioner on the assumption that there is a decree for prohibitory injunction and that the same has been violated by the respondents/defendants. It is accordingly that in the execution petition, the petitioner has prayed for detention of the respondents in civil prison for violation of the decree. **O.P(C) No.2374 of 2013** ## **-: 5 :-** 4. As per Ext.P1 judgment, the suit was decreed. In the suit, there was a specific prayer for prohibitory injunction against trespass. Issue No.7 raised in the suit was as to whether the plaintiff is entitled for the relief of injunction. The issue was concluded in favour of the petitioner and it was held as follows: “defendants have no right to trespass upon the plaint schedule property. So, the injunction prayed for is allowable.” However, in the decretal portion of the judgment, the relief of injunction was omitted to be stated. The decretal portion runs thus: “In the result, the suit is decreed, allowing the plaintiff to recover the plaint schedule properties. The plaintiff is also entitled to his cost”. Obviously, the non-mentioning of the relief of injunction, was an omission on the part of the court. The respondents/judgment debtors are attempting to take shelter under the fact that the decretal portion of the judgment does not provide for a decree for prohibitory **O.P(C) No.2374 of 2013** ## **-: 6 :-** injunction against trespass. Evidently, it was an omission/mistake committed by the court. It is submitted by the learned counsel for the petitioner/plaintiff that the petitioner has filed I.A. Nos.883 and 884 of 2013 for amendment of the judgment and decree to incorporate the decree of prohibitory injunction which was omitted to be mentioned in the decretal portion of the judgment and decree by inadvertence. 5. It is true that the decree in O.S. No.8 of 1992 for recovery of possession has been executed and satisfaction recorded. But the fact remains that immediately thereafter on 11.03.2013, within a period of one month after delivery, the respondents/judgment debtors trespassed into the building that was delivered over to the petitioner. The above act of the respondents are not to be countenanced. Respondents who were bound by the decree and were evicted from the **O.P(C) No.2374 of 2013** **-: 7 :-** decree schedule property in execution of the decree had the audacity to commit further trespass into the property. The contention, that the petitioner is to be driven to a separate suit, stating that the subsequent trespass only furnishes a fresh cause of action, is a sheer mockery of justice and the system. I have no hesitation to hold that the subsequent trespass by the respondents is in violation of the authority of law, decree and delivery effected thereto. As goes the maxim “ _fiat justicia ruat coelum_ ”, justice is to be done though heavens may fall; the exercise of the authority of law is not to be hampered with technicalities. I am emboldened in my said view by the judgments in **Dasan Nadar Surendran v. Parameswaran Pilla** (2007 [4] KLT 563) and **Illyas v. State of Kerala** (2014 [4] KLT 362). In **Dasan Nadar Surendran v. Parameswaran Pilla** (supra), in execution of a decree for fixation of boundary, a **O.P(C) No.2374 of 2013** ## **-: 8 :-** boundary wall was put up. After full satisfaction of the decree was recorded and the execution petition was closed, the judgment debtors demolished the boundary wall. Similar contention was raised therein, that the decree has already been executed and the subsequent trespass only gives rise to a fresh cause of action. This Court rejected the contention and held that by the subsequent execution petition what is sought for is virtually a review of the order recording full satisfaction in the earlier execution petition. In **Illyas v. State of Kerala** (supra), the facts are more or less similar to the present case. Therein, a suit for recovery of possession was decreed. The decree was executed and the property was delivered over to the decree holder. Alleging further trespass by the judgment debtors, the decree holder approached this Court in a proceeding under Article 226 of the Constitution of ## **O.P(C) No.2374 of 2013** ## **-: 9 :-** India for a direction to the police to evict the judgment debtors who trespassed into the property. The Division Bench of this Court held that “despite the decree being passed and executed, if the defendants again trespassed into the property, the police is bound to interfere in the matter and restore possession to the decree holder. The decree holder has obtained a decree of the civil court and after delivery in execution proceedings, the respondents have trespassed into the suit property which is in gross violation of the decree passed. Persons who did not obey judgments of the civil court cannot insist that the petitioner should again be driven to the civil court for recovery of possession of his property.” The Division Bench of this Court directed the police to see that the trespassers therein are evicted from the property. 6. As noticed earlier, action on the part of the **O.P(C) No.2374 of 2013** ## **-: 10 :-** respondents are not to be countenanced. The court is not to shut its eyes to such illegal acts. The faith of the common man in the very system will be effaced if such contentions are entertained. In the result, Ext.P6 order dated 10.04.2013 in E.A. No.94 of 2013 in E.P. No.29 of 2013 is set aside. The execution application will stand allowed. The respondents shall be evicted from the decree schedule property in O.S. No.8 of 1992 including the building in question, with the assistance of police, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The Original Petition is allowed. Sd/- **SATHISH NINAN, JUDGE.** vsv