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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944**
**CRP NO. 262 OF 2021**
**AGAINST THE ORDER/JUDGMENTOS 1005/1996 OF II ADDITIONAL**
**MUNSIFF COURT ,NEYYATTINKARA**
## **REVISION PETITIONER/S:**
1 MANUVEL SELVARAJ AGED 61 YEARS KUMAR BHAVAN, VENKADAMBU DESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583. 2 GABRIEL NESAMONY AGED 74 YEARS PARIYAM THEKKEKKARA VEEDU, VENKADAMBU DESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583. BY ADVS. S.KRISHNA GOVIND R.
## **RESPONDENT/S:**
1 SURESH (S/O GABRIEL NADAR) STELLA MARYS BHAVAN, VENKADAMBU DESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM -6695583 IS SUBSTITUTED AS THE 1ST RESPONDENT AS PER ORDER DATED 30.09.2021 IN IA 2/2021 IN CRP 262/2021. 2 RAJAPPAN JOSEPH DARSANA BHAVAN, VENKADAMBU DESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583. 3 GABRIEL VINCENT ELLATHANNI, VENKADAMBUDESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583. 4 PODIYAN NADAR SUNDARAN NADAR
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SUNDARA VILASAM, KOLLAMANNADI VEEDU, VENKADAMBUDESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583.
5 ARULAPPAN NADAR VARGHESE NADAR JULY VILLA, VENKADAMBUDESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583. 6 KULATHOOR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583.
7 NIRMALA SUNDARAVILASOM, KOLLAMANNADIVEEDU, VENKADAMBU DESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583.
8 SUNDARAN NADAR JOY SUNDARAVILASOM, KOLLAMANNADIVEEDU, VENKADAMBUDESOM, KULATHOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-695583.
BY ADVS. V.G.ARUN (K/795/2004) V.JAYA RAGI NEERAJ NARAYAN R.HARIKRISHNAN (KAMBISSERIL)
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON 15.07.2022 DELIVERED THE FOLLOWING:
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## **V.G.ARUN, J.**
## **----------------------------------------------C.R.P.No. 262 of 2021 ----------------------------------------------Dated this the 15[th] day of July, 2022**
## **O R D E R**
The petitioner's father, late Gabrial Nadar, was in ownership and possession of 12 cents of property comprised in Survey No.449/3 (Re-survey No.91/12) of Block No.45 in Kulathoor village, Neyyattinkara Taluk, Thiruvananthapuram District. The property had well defined boundaries on all sides, viz, compound wall on the eastern side, granite basement on the southern and western sides and PWD road on the immediate north. In an attempt to cut-open a public way through the property, certain residents of the locality partly demolished the boundaries and cut-down standing trees. Thereupon, the petitioner's father filed O.S.No.1005/1996 before the II[nd] Additional Munsiff's Court, Neyyattinkara against the original petitioners herein and their supporters. The suit was filed in a representative capacity, with the aid of Order 1 Rule 8 of C.P.C, seeking declaration of title and possession, injunction and damages.
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The defendants, including the additional 8[th] defendant/Kulathoor Grama Panchayath, filed written statements essentially contending that description of the plaint scheduled property takes in portion of the Mavilakkadave-Kalluvila-Pariyaram-Valiyavila BMLP School road, which has been in existence for the past many years. The property of the plaintiff lies to the west of that road and the attempt of the plaintiff is to legalise his encroachment. The trial court, after careful scrutiny of the evidence tendered, particularly the reports and plans filed by the Advocate Commissioner, came to the conclusion that there was no encroachment over the public road as alleged by the defendants and that the plaintiff is having title and possession over plaint schedule property. Based on the findings, plaintiff's title and possession over plaint schedule property was declared. The defendants personally, and as representatives of the residents of Kulathoor Village, were permanently injuncted from trespassing into the plaint scheduled property and from committing waste therein.
2. Aggrieved by the judgment and decree, the 8[th] defendant Panchayath filed appeal. The appeal was
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dismissed with cost, affirming the findings of the trial court and observing that the evidence on record is conclusive to the effect that there is no public road in existence on the eastern side of the plaint schedule property, which implies that Ext.B1 (Panchayath Road Register) is a fabricated document.
3. During pendency of the appeal, on 02.03.2003, the revision petitioners along with others demolished the compound wall constructed by the plaintiff on the northern and southern boundaries. Thereafter, the defendants persistently flouted the trial court decree by walking through the plaint schedule property. Faced with such a situation, the petitioner's father filed E.P.No.93/2010 seeking the following
reliefs;
“ _(1) to pass an order to restore the compound wall in FE and ED line as shown in Ext. C2(a) plan._
_(ii) to direct the police to render sufficient protection to the decree holder to construct a compound wall in BC line as showed, by commissioner in Ext. C2(a) plan._
_(iii) if necessary, to appoint a commissioner to erect a compound wall through BC line as showed by the commission in Ext. C2(a) plan._
_(iv) to pass an order allowing the decree holder to restore the demolished compound wall in_
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_HGF line as shown in Ext.C2(a) plan through the process of law._
_(v) Judgment debtors 4 to 7 to be prosecuted and punished for the contemptuous acts mentioned in this execution.”_
4. After examining the witnesses on both sides and considering the objections raised by the judgment debtors, including the contention regarding maintainability of the execution petition, the impugned order was passed deputing an Advocate Commissioner to restore the compound wall and directing the SHO, Pozhiyoor Police Station to render police protection and assistance to the Commissioner for implementing the order.
5. Adv.S.Krishna, learned Counsel for the petitioners contended that the impugned order has gone beyond the decree and granted relief which was neither not sought nor granted on the original side. It is pointed out that the plaintiff had obtained a declaratory decree as regards his title and possession over plaint schedule property and a permanent prohibitory injunction, restraining the defendants from trespassing into the property and committing waste therein. On the strength of the decree, the first respondent/decree holder is being permitted to put up
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boundary walls. The relief sought in the execution petition being in excess of the decree, the petitioners contended that the execution petition is not maintainable and the relief sought cannot be determined under Section 47 of the Code of Civil Procedure, 1908. The impugned order has been passed without proper consideration of the contention regarding maintainability. As such, the order is liable to be set aside and the execution court directed to consider the matter afresh.
6. Adv.Arun V.G, learned Counsel appearing for the first respondent, submitted that the revision petition is filed without mentioning the true facts. It is pointed out that, based on the impugned order dated 09.03.2021, the Advocate Commissioner came to the decree scheduled property on 30.07.2021 for executing the decree. In spite of the presence of a contingent of police at the spot, the revision petitioners, along with a posse of men and women, forcefully obstructed the Advocate Commissioner. As a result, the Advocate Commissioner had to return from the spot without executing the warrant of commission. Thereafter, the Advocate Commissioner filed Annexure
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R1(a) interim report stating as to what had transpired and requesting for police assistance under the supervision of an officer not below the rank of Deputy Superintendent of Police. On receipt of Annexure R1(a), the court below issued Annexure R1(b) Official Memorandum dated 26.08.2021 directing the District Police Chief to give necessary police assistance by deputing Police personnel, including Women Police Constables under the supervision of an officer not below the rank of Dy.SP. Thereafter, the Advocate Commissioner again visited the decree scheduled property on 27.08.2021 with police assistance. The police team consisted of the Dy.SP, Neyyatinkara, 3 Circle Inspectors, 31 Sub-Additional Sub Inspectors, 42 SEPO/CPO and 8 Women Police Constables. Once again the revision petitioners and others obstructed the Advocate Commissioner from executing the decree and refused to disperse from the spot, in spite of repeated requests by the police. This resulted in the Advocate Commissioner filing Annexure R1(c) report dated 31.08.2021. Thereupon, the execution court directed the District Police Chief to appear in person to explain the circumstances under which the Police
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failed to give proper assistance to give the Advocate Commissioner. The civil revision petition was filed at that stage and an interim order obtained.
7. Learned Counsel contended that having illegally obstructed the Advocate Commissioner from executing the decree, the revision petitioners have no legal right to challenge the impugned order. It is submitted that the belated challenge is raised on realising that the execution court will take necessary measures to ensure that the decree is executed at any cost. It is contended that the challenge against maintainability of the execution petition has been rightly repelled by the court below. Attention is drawn to Section 51(e) and Order 21 Rule 32 (5) of the CPC to contend that the execution court can direct execution in the manner in which the nature of the relief granted by the decree requires. In support of this proposition, reliance is placed on the decisions in _Ajayakumar v. Damayanthi [2004 (2) KLT 48], Gopinathan Pillai V v. Rajappan and - others [2011 (2) KLT 59] and Printing & Publishing Co operative Society Ltd v. Santhosh and another [2018 (1) KHC 848]_ . Finally, it is submitted that by the high
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handed and illegal action of the revision petitioners and their henchmen, the original plaintiff died without enjoying the fruits of the decree and in spite of 23 years having elapsed, the decree remains unexecuted.
8. A perusal of the impugned order shows that the executing court has considered the objections raised by the revision petitioners in a just and legal manner. Relying on _- Ajayakumar, Gopinathan Pillai and Printing & Publishing Co operative Society Ltd,_ the execution court found itself to be empowered to do all necessary acts for enforcing the decree. It is my considered opinion also that the execution court's power to ensure execution of the decree should not be fettered based on technical objections. In the instant case, there is a permanent prohibitory injunction restraining the revision petitioners and others from trespassing into the plaint scheduled property. Violating the order, the revision petitioners along with others demolished the compound wall of the petitioners property and continuously flouted the order by walking through the property. Being so, the decree can only be enforced by permitting the decree holder to restore/construct the compound walls and thus preventing
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the trespass. This is precisely what the execution court has done.
9. I also find substantial merit in the contention urged on behalf of the first respondent that, after having flagrantly violated the injunction order and obstructed the Advocate Commissioner, the revision petitioners have no vestige of right to challenge the impugned order, when faced with the possibility of the decree being executed at any cost. The illegal obstruction by the petitioners, if allowed to continue will be an affront to the rule of law. No person, however, high and mighty he may be, can be allowed to flout valid orders/decrees of court. Therefore the execution court was fully justified in requiring the District Police Chief to give proper assistance to the Advocate Commissioner for executing the decree. In the above circumstances, the belated challenge against the impugned order is misconceived and unsustainable.
In the result, the Original Petition is dismissed with cost of Rs.5,000/- (Rupees five thousand only). I refrain from imposing exemplary cost in view of the request in that regard made by learned Counsel for the petitioner, pointing
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out that the petitioners and others, who had obstructed the Advocate Commissioner and Police, are rustic villagers without much knowledge about the nuances of law.
The learned Munsiff shall issue fresh direction to the Advocate Commissioner to execute the decree with Police aid and require the District Police Chief to provide sufficient Police force to ensure that the decree is executed. Any obstruction during the course of execution of the decree shall be prevented, if necessary by use of force within the bounds of law.
The cost shall be remitted by the petitioners to the Advocate Welfare Fund and evidence of such payment produced before the execution court within two weeks of receipt of a copy of this judgment.
**Sd/-**
## **V.G.ARUN, JUDGE**
_vgs_
