OP(C) No.540 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S.S. Satheesachandran
Judgment Date: 2012-01-23
Court Decision / Holding: The Original Petition is dismissed.
Final Disposition: Original Petition dismissed.

Parties to the Case

Appellants / Petitioners

Abdul Kharim
Sainudeen

Respondents

Saraswathy Amma
Pushpakumari
Lalithakumari
Sobhanakumari
Ajitha Kumari
Kumari Sindu
Vinod Kumar
Sreekumar

Legal Representation & Advocates

Counsels for Petitioners

• D. Kishore
• Mini Gopinath

Counsels for Respondents

• G.S. Reghunathan

Case Synopsis & Summary

Petitioners Abdul Kharim and Sainudeen, not parties to the decree in OS.176/04, moved OP(C) 540/2010 under Order 21 Rule 97 CPC to resist execution of a decree of perpetual injunction obtained by respondents 1 to 7. The decree holders alleged that the judgment debtor removed a gate and sought execution under Order 21 Rule 32 CPC for the injunction decree. The petitioners contended that the subject property had already been dedicated to the public and, as members of the public, they have an interest in the matter which requires adjudication before further execution. Their counsel relied on Nawab Shaqafath Ali Khan and Others v Nawab Imdad Jah Bahadur and Others (2009) 5 SCC 162 to argue that where a right of appeal is unavailable, the legality of the adverse order can be challenged through Article 227 of the Constitution. The learned Munsiff noted that possession over the immovable property was not in dispute under execution and held that the application under Order 21 Rule 97 (and Rule 99) was not maintainable. The court stressed that a decree for injunction can be executed only under Order 21 Rule 32 CPC and that the applicability of Rules 97/99 arises only where possession of immovable property is involved. Consequently, the petition was dismissed. The court did not accept the public-interest challenge as a ground to entertain the petition, and reserved no remedy under Article 227 for this scenario.

Provisions of Law Cited

Order 21 Rule 97 CPCOrder 21 Rule 32 CPCOrder 21 Rule 99 CPCOrder 14 Rule 2 CPCArticle 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that under common law a party has a right to challenge an adverse decision and, being members of the public with an interest in the subject matter, their rights should be adjudicated before further execution. Relying on Nawab Shaqafath Ali Khan and Others v Nawab Imdad Jah Bahadur and Others (2009) 5 SCC 162, they urge that where a direct right of appeal is absent, the legality of the adverse order can be challenged through Article 227 of the Constitution. They maintain that Ext.P3 order could be treated as a decree and appealable, and that their challenge falls within the visitorial jurisdiction of the High Court. They also argue that execution of the injunction decree is governed by Order 21 Rule 32 CPC and that resistance based on public interest merits consideration.

Contentions of Respondents

The respondents argue that petitioners are not parties to the decree and cannot challenge its execution; a decree for injunction can be executed only under Order 21 Rule 32 CPC, and a petition under Order 21 Rule 97/99 is applicable only where possession of immovable property is involved. They contend that Ext.P3 is not a decree and cannot be treated as such; the remedy for any challenge should be sought by appropriate channels, not through this petition. The petition is therefore misdirected and should be dismissed.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Nawab Shaqafath Ali Khan and Others v Nawab Imdad Jah Bahadur and Others	(2009) 5 SCC 162	Mentioned Only	Cited by the petitioners to support using Article 227 and a visitorial view, but the court did not rely on it in its final ruling and dismissed the petition on other grounds.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **MONDAY, THE 23RD DAY OF JANUARY 2012/3RD MAGHA 1933** ## **OPC.No. 540 of 2010 (O)** **----------------------------------OS.176/2004 of ADDL.MUNSIFF COURT,NEDUMANGAD. EP. 65/2009 IN EA. 411/2010 OF ADDL. MUNSIFF COURT, NEDUMANGAD** **...............** ## **PETITIONER(S)** ## **------------------------** **1. ABDUL KHARIM, S/O. IBRAHIM KUNJU, KARIKKAKATHIL VEEDU, VELLANCHIRA, PANAVOOR VILLAGE NEDUMANGAD TALUK.** **2. SAINUDEEN, S/O. HASSANKUNJU, BINSHAD MANZIL, PANAVOOR.P.O., VELLANCHIRA NEDUMANGAD.** ## **BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH** ## **RESPONDENT(S):** - **--------------------------** **1. SARASWATHY AMMA, W/O. VASUDEVAN NAIR, SARASWATHY BHAVAN, VELLANCHIRA, PANAVOOR.P.O. PULLAPARA VILLAGE, NEDUMANGADU TALUK-695568.** **2. PUSHPAKUMARI, D/O. SARASWATHY AMMA, SARASWATHY BHAVAN, VELLANCHIRA,PANAVOOR.P.O. PULLAPARA VILLAGE, NEDUMANGADU TALUK-695568.** **3. LALITHAKUMARI, D/O. SARASWATHY AMMA, SARASWATHY BHAVAN, VELLANCHIRA,PANAVOOR.P.O. PULLAPARA VILLAGE, NEDUMANGADU TALUK-695568.** **4. SOBHANAKUMARI, D/O. SARASWATHY AMMA, SARASWATHY BHAVAN, VELLANCHIRA, PANAVOOR.P.O. PULLAPARA VILLAGE, NEDUMANGADU TALUK-695568.** **5. AJITHA KUMARI, D/O. SARASWATHY AMMA, SARASWATHY BHAVAN, VELLANCHIRA, PANAVOOR.P.O. PULLAPARA VILLAGE, NEDUMANGADU TALUK-695568.** **tss** ## **OP(C) NO.540/2010** **6. KUMARI SINDU, D/O. SARASWATHY AMMA, SARASWATHY BHAVAN, VELLANCHIRA, PANAVOOR P.O. PULLAPARA VILLAGE, NEDUMANGADU TALUK-695568.** **7. VINOD KUMAR. S/O. SARASWATHY AMMA, SARASWATHY BHAVAN, VELLANCHIRA, PANAVOOR.P.O. PULLAPARA VILLAGE, NEDUMANGADU TALUK-695568.** **8. SREKUMAR, S/O. SREENIVASAN, PULINKOTTUKUNNIL VEEDU, VELLANCHIRA PULLAMPARA VILLAGE-695607.** **R1 TO7 BY SRI.G.S.REGHUNATH** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **OP(C) NO.540/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE DECREE IN OS. 176/04 .** **P2:- COPY OF THE AFFIDAVIT AND PETITION IN EA. 411/2010 IN EP. 65/09 IN OS. 176/04. P3:- COPY OF THE ORDER DTD. 22.10.2010 IN EA. 411/2010MIN EP. 65/09 OM OPS. 176/04.** ## **RESPONDENT'S EXHIBITS** ## **NIL** ## **TRUE COPY** **P.A. TO JUDGE** **tss** **'C.R'** **S.S.SATHEESACHANDRAN, J. ----------------------------------------------O.P.(C) No.540 OF 2010 ------------------------------------------------------Dated this the 23[rd] day of January, 2012** ## **JUDGMENT** Petitioners, who are not parties to the decree put in execution, moved an application under Order 21 Rule 97 of the Code of Civil Procedure, to resist the execution of a decree of injunction obtained by the plaintiffs/respondents 1 to 7. In violation of the decree, the judgment debtor, as against whom the decision was rendered by the court on merits, has removed a gate, was the case of the decree holders to apply under Order 21 Rule 32 of the Code of Civil Procedure to proceed against him. At that stage, the petitioners moved an application under Order 21 Rule 97 of the Code of Civil Procedure setting forth a case that the property in which the plaintiffs/decree holders imputed violation of the decree of injunction had already been dedicated to the public and as members of the public they have interest in the subject matter so involved and their right and interest have to be adjudicated before proceeding further with the execution. The learned Munsiff taking note that possession over the immovable property was not the disputed question covered by the execution, but, O.P.(C) No.540 OF 2010 2 only violation of an order of injunction passed against the judgment debtor, concluded that the application moved by the petitioners is not maintainable. Propriety and correctness of that order is assailed in this Original Petition. 2. Learned counsel for the petitioners submitting that under the common law a party should have a right to challenge an adverse decision rendered against him contended that the petitioners in the present case are fully competent to seek for an adjudication of their right and interest claimed over the property in respect of which a decree had been passed against another at the instance of the respondents 1 to 7/decree holders. Relying on **“Nawab Shaqafath Ali Khan and Others v Nawab Imdad Jah Bahadur and Others”** **((2009) 5 SCC 162),** the learned counsel contended that where a right of appeal is not provided, the legality of the adverse finding or order passed by the court could be challenged before this court invoking its visitorial jurisdiction under Article 227 of the Constitution of India. There is no merit in the challenge raised against the order of the learned Munsiff, is the submission of the learned counsel for the decree holders contending that even a suit which had been filed by the petitioners setting forth an identical claim had been dismissed. O.P.(C) No.540 OF 2010 3 The application moved under Order 21 Rule 97 of the Code of Civil Procedure by an obstructor, it is submitted by the counsel, was not even entertainable, since such a challenge could lie only under Order 21 Rule 99 of the Code of Civil Procedure, that too when possession over an immovable property as such is involved in execution of a decree. What is being executed is only a decree of injunction as provided under Order 21 Rule 32 of the Code of Civil Procedure is also pointed out by the counsel to contend that the execution of such a decree is permissible within the parameters covered thereunder only against the judgment debtors or their assignees or agents who are bound by such decree and none other. 3. In the given facts of the case not much dilation over the entertainability of the application moved by the petitioners under Order 21 Rule 97 or Rule 99 is called for. A decree for injunction can be executed only as provided under Order 21 Rule 32 of the Code of Civil Procedure. The applicability of Order 21 Rule 97 or Rule 99 will arise only where the decree relates to or involves possession over an immovable property. Whatever be the relief canvassed by the petitioners in their suit, evidently, by filing such a suit they had taken recourse for prosecution of their legal right. If they are not bound by O.P.(C) No.540 OF 2010 4 the decree passed in the case, it is open to them to take whatever measures available under law to protect their interest, but, resistance to a decree for perpetual prohibitory injunction contending that its execution would affect the right of the petitioners, that too as members of a public over an immovable property under Order 21 Rule 97 or 99 of the Code of Civil Procedure, cannot be entertained at all. The decision relied by the counsel, rendered by the apex court with reference to finding entered under Order 14 Rule 2 of the Code of Civil Procedure pointing out that if such finding or decision does not result in passing of a decree no appeal will lie against such finding or decision will no way assist the petitioners to contend that they can challenge the order impugned by way of the original petition under Article 227 of the Constitution of India. If they have any legal right to challenge Ext.P3 order, as if it were a decree, it should have been taken before the appropriate forum in accordance with law. The learned counsel at this stage made a request for reserving the right of the petitioners to assail Ext.P3 order by an appeal treating such an order passed on their application as a decree. Having challenged Ext.P3 order before this court invoking Article 227 of the Constitution of India and at the fag end seeking for a reservation to pursue the O.P.(C) No.540 OF 2010 5 challenge against Ext.P3 order as if it were a decree, in the given facts of the case, I find, is not allowable. The Original Petition is dismissed. Sd/vdv **S.S.SATHEESACHANDRAN, JUDGE** //True Copy// P.A to Judge