Lukose Mathew and Joy Mathew v. Lukose Sebastian

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932** **WP(C).No. 26316 of 2009(O)** **---------------------------------------** - **(EP.NO. 23/2008 IN OS.204/1993 OF MUNSIFF'S COURT, ETTUMANOOR)** **....................** **PETITIONERS:** **---------------------** **1. LUKOSE MATHEW (JUNIOR),(2ND JUDGMENT DEBTOR),PULLUKALAYIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE.** **2. JOY MATHEW,** - **(4TH JUDGMENT DEBTOR), S/O.LUKOSE MATHEW, PULLUKALAYIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE.** **BY ADVS. MR.M.P.MADHAVANKUTTY, MR.B.S.KRISHNA KUMAR.** **RESPONDENT:** **----------------------** **LUKOSE SEBASTIAN,CHIRAYILAYA PULLUKALAYIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE.** **BY ADVS. MR.SHAJI THOMAS PORKKATTIL, MR.T.V.VINU.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.26316/2009-O:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE E.P. NO. 23/2008 IN O.S. NO. 204/1993 BEFORE THE MUNSIFF'S COURT, ETTUMANOOR.** **EXT.P.2: COPY OF THE E.A. NO. 29/2008 IN E.P. NO. 23/2008.** **EXT.P.3: COPY OF THE E.A. NO. 29/2008 IN E.P. NO. 23/2008.** **EXT.P.4: COPY OF THE COMMON ORDER IN E.A. NO. 29/2008 AND E.A. NO. 31/2008 IN E.P. NO. 23/2008 IN O.S. NO. 204/1993 BEFORE THE MUNSIFF'S COURT, ETTUMANOOR.** **EXT.P.5: COPY OF THE DECREE DTD. 29/06/1996 IN O.S. NO. 204/1993 BEFORE THE MUNSIFF'S COURT, ETTUMANOOR.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 26316 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. ## **JUDGMENT** In this writ petition filed under Article 227 of the Constitution of India, the petitioner seeks to have Ext.P4 order quashed. 2. The petitioners are judgment debtors 2 and 4 in E.P. 23 of 2008 in O.S. 204 of 1993 before the Munsiff's Court, Ettumanoor. The respondent is the decree holder. Execution of the decree was taken out through E.P. 23 of 2008 on 21.7.2008 by the decree holder against the judgment debtors and proceeding against them under Order XXI Rule 32 of the Code of Civil Procedure. It is pointed out that even though the petitioners preferred A.S.109 of 1996 against the judgment and decree of the trial court, that did not yield any benefit. 3. In the E.P. filed by the decree holder, an Amin was deputed and he filed the report, which is 2 WPC. 26316/2009. extracted in paragraph 4 of the petition. Thereafter E.P.23 of 2008 was filed pointing out that the petitioners have violated the terms of the decree and therefore appropriate proceedings may be taken. The violations complained of were (i) that judgment debtors 2 and 4 have opened the drain which was closed by the Amin thereby the rain water is allowed to flow into the staircase, and (ii) the advertisement board, which was obliterated by the Amin has again been placed in the same place. In the writ petition, copy of E.P.23 of 2008 is produced as Ext.P1. E.A. 29 of 2008 and E.A. 31 of 2008 were also filed by the decree holder to prosecute the petitioners and for other reliefs. Copy of the petitions are produced as Exts.P2 and P3. The allegation in the affidavit in support of those petitions were that the petitioners have opened the drains which was closed by the Amin and that the advertisement board has been replaced. An advocate commissioner was appointed, who filed Exts.C1 and C1(a) report. WPC. 26316/2009. 3 4. The court below took evidence in the matter. The decree holder examined P.Ws.1 and 2 and the first defendant was examined as D.W.1. The court below passed a common order on E.A.29 of 2008 and E.A. 31 of 2008, which is produced as Ext.P4. It is the said order that is assailed in this petition. 5. Learned counsel appearing for the petitioners pointed out that the court below was not justified in passing the impugned order. Principles to be borne in mind while dealing with the execution petition under Order XXI Rule 32 of CPC complaining about violation of the order of injunction have not been kept in mind. The court below omitted to note that the essential particulars like the date, time and nature of the violation have to be specified in the petitions. E.P.23 of 2008 is silent regarding these aspects. At the time of evidence, P.W.1 spoke that the incident took place in April, 2008. It is contended that the petitions should not have been entertained at all. It was also contended that there is no evidence to show that it was the petitioners who WPC. 26316/2009. 4 had committed the mischief, even assuming that there is one. The allegation is that they have cut and removed the channel in the shutter is not proved. There was nothing before the court below to show that the acts which were complained of were done by the petitioners. It is thus pointed out that Ext.P4 order is clearly unsustainable in law. 6. Learned counsel appearing for the respondents on the other hand pointed out that the court below has considered the matter in considerable detail with the aid of the Commissioner's report and had come to the conclusion that there has been violation of prohibitory injunction decree passed in favour of the decree holder. There is a clear finding by the court below that by the act of the petitioners, the convenient enjoyment of the property by the decree holder is affected. Learned counsel also pointed out that all essential details are given in the execution petition and it does not suffer from any infirmity. In short, according to learned counsel, there are no grounds made out to interfere with the order of the court below. 5 7. It will be useful to refer to the decree. The relevant portion of the decree reads as follows: _“a) The defendants are restrained from causing any alterations in the plaint schedule property and from causing any damage to the plaint schedule properties and from causing any obstruction for the peaceful use of the plaintiff over the plaint schedule properties._ _b) The defendants are directed by a decree of mandatory injunction to remove the articles kept in the plaint schedule building by them and to remove the lock and key kept by them in the shutters of the stain case room so that the plaintiff can use the corridor of the staircase freely without any obstruction. In the circumstances of the case and considering the relationship between the parties, parties are directed to suffer their respective cost.”_ There is no dispute regarding the fact that the respondent herein had obtained a decree against the petitioners also. One painful aspect is that the parties are closely related. The decree was passed on 29.6.1996. The relevant portion of the decree has already been extracted. It is seen from WPC. 26316/2009. 6 the records that earlier E.P. 33 of 2002 was filed by the decree holder and after considering the objections put forward by the judgment debtors, execution was effected through the Amin on 16.12.2002 with the aid of police. Even though the decree directed that the advertisement boards etc should be removed, the judgment debtors did not obey the decree. That had necessitated the execution proceedings to be initiated. 8. It is seen that thereafter E.A. 4 of 2003 was filed by the judgment debtors in E.P.33 of 2008 complaining of excess delivery. That petition was dismissed. 9. The acts which gave rise to the present proceedings is that fully aware of the decree passed and the execution proceedings thereafter the respondents before the court below in the execution petition demolished a portion of the drains closed by the Amin, which would prevent flowing of the rain water into the staircase. They have also cut the channel attached to the shutter thereby making it impossible for the decree holder to lock the shutter. Several WPC. 26316/2009. 7 other acts are also mentioned. Ultimately, it is pointed out that action may be taken against them and a sum of Rs.5000/- may be given as compensation for the acts committed by the judgment debtors. 10. E.A.31 of 2008 is an application filed under Order XXI Rule 32 read with Section 151 of the CPC containing similar allegations and seeking to have the judgment debtors, against whom present proceedings have been initiated, detained in civil prison. 11. The application was resisted by the petitioners herein. They contended that it is for the decree holder to establish the allegations put forward in the petition. They also challenged the act of the Amin in the earlier proceedings. They denied that they had violated the decree. They also contended that the decree holder has no right to the staircase on the eastern wall except the land beneath the staircase. It is pointed out that the staircase has no roof and rain water falls directly on the stairs. No right was conferred on the decree holder regarding the shutters and 8 WPC. 26316/2009. therefore he cannot complain about any act done to the shutters. They denied all the allegations and prayed for a dismissal of the petitions. For the purpose of considering the application, the court below had P.Ws.1 and 2 examined and Exts.A1 to A10 marked. D.W.1 was examined and Ext.B1 marked. Exts.C1 and C1(a) were also marked. On hearing both sides, the court below passed the impugned order. 12. On going through the decree passed on 29.6.1996 it can be seen that the suit relate to 6.78 Ares of land. The defendants pointed out that the plaintiff had no manner of right over the property. But it can be seen from Ext.A2 decree that that is not correct. The court below has in detail considered the scope of the decree. 13. In E.P.33 of 2002 filed by the decree holder, E.A.78 of 2002 was filed by the judgment debtors for measuring the property before effecting delivery. That was dismissed. Then the judgment debtors resorted to an independent suit. Ext.A3 is the delivery kaycheet prepared WPC. 26316/2009. 9 by the Amin in E.P.33 of 2002. The report clearly shows that the advertisement board in the parapet was erased and the drains were closed and delivery as per the decree was effected on 16.12.2002. There have been several litigations between the parties thereafter. 14. Coming to the proceedings presently involved, one contention put forward by the judgment debtors is that the decree schedule property is not identifiable, and that the decree was not executable. There is no merit in this contention at all. There was an earlier execution, in which the property was delivered as could be seen from the report of the Amin in that proceedings. It has also seen that the building situate in one fourth cents of the suit property belongs to the decree holder as per the partition deed and he was permitted to lock the shutters to the staircase and to keep the key with him. There is no dispute regarding the fact that the staircase has no roof. Earlier the complaint of the decree holder was that two pipes had been put up to drain out water which infact fall on the staircase, which WPC. 26316/2009. 10 made it difficult to use the staircase. Even though the judgment debtors say that the decree holder has no right over the staircase, it cannot be true in the light of the facts which has already been referred to. However, D.W.1 examined from the side of the judgment debtors conceded that the decree holder has to use the staircase to reach his house, which situates behind the staircase. D.W.1 also accepted that the Amin had delivered the staircase to the decree holder in the earlier execution proceedings. 15. The Commissioner, who prepared Exts.C1 and C1(a) was examined as P.W.2. From the report it can be seen the south eastern portion of the parapet on the eastern side facing towards the staircase was seen removed. The shop room of the second judgment debtor is situated on the western side of the staircase room. The commissioner has specifically reported that the water falling in the terrace will flow through the removed portion of the parapet and fall on the staircase. He has also reported about the tampering of the shutters. He has also reported about the various other WPC. 26316/2009. 11 acts. It is specifically stated in the report that the judgment debtors have put up an advertisement board encroaching into 25 cms into the decree schedule building. 16. The main contention taken by the learned counsel for the petitioners, as already been referred to, is that the date, time and the nature of violation and the persons who did that have not been specifically mentioned in the petition and therefore the petition should fail. 17. The essential particulars have been stated in the petition and it has been supplemented by the evidence of P.W.1. P.W.1 has specifically spoken about the mischief committed by the judgment debtors. There is no merit in the contention of the judgment debtors that the judgment debtors have not done anything in violation of the decree. One must recollect here that in pursuance of the decree passed in the earlier execution proceedings, two pipes through which water fell on the staircase have been removed pursuant to the decree. Thereafter what has now been done is removed a portion of the parapet wall causing WPC. 26316/2009. 12 the same result that rain water will fall directly into the staircase, a mischief that was sought to be prevented by the decree. The court below has also referred to the fact that Ext. A2 decree confers on the decree holder the right to use the staircase and also the land beneath the staircase. It is also found that the decree holder has a right to use the corridor of the shop. The court below based on the Commission report and the evidence of P.Ws.1 and 2 found that the complaint made by the decree holder is true. On going through the records, this court finds no reason to take a different view. 18. However, the question as to whether damages can be granted while acting Order XXI Rule 32 is open to serious doubt. Order XXI Rule 32 reads as follows: _**“32. Decree for specific performance for restitution of conjugal rights, or for an injunction.**_ - ( _1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an_ WPC. 26316/2009. 13 _opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both._ _(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention._ _(3) Where any attachment under sub-rule (1) or sub-rule(2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application._ WPC. 26316/2009. 14 _(4) Where the judgment debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease._ _(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the Court, at the cost of the judgment/debtor, and upon the act being done the expense incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree._ _Explanation.- For the removal of doubts, it is hereby declared that he expression “the act required to be done” covers prohibitory as well as mandatory injunctions.”_ WPC. 26316/2009. 15 True, Order XXI Rule 32(5) makes provision for recovering costs from the judgment debtor for the act that is required to be done to remedy the violation. But that is different from saying that damages can be awarded to the decree holder. This aspect has been considered in the decision reported in **Rev. Fr. Paulose v. Shajahan** (2009(3) K.L.T. 394) In the light of the principle laid down in the above decision, that portion of the impugned order awarding damages cannot be sustained. 19. The order of the court below that judgment debtors 2 to 4 are to be detained in civil prison for three months seems to be extremely harsh. It is no doubt true that they have resorted to high handed action. But the fact still remains that the parties are brothers and close relatives. Even though one cannot justify the act done by the judgment debtors as found by the court below, it is felt that detention in civil prison for a period of 15 days would suffice. WPC. 26316/2009. 16 The impugned order is modified to the above extent and regarding the rest, it stands confirmed. **P. BHAVADASAN, JUDGE** sb.