P.K. Kesava Babu v. K. Raveendran and Omana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939** **CRP.No. 298 of 2015 () ----------------------** **E.P.206/11 IN OS.744/2003 OF ADDITIONAL MUNSIFF, COURT ALAPPUZHA. .....** **REVISION PETITIONER/DECREE HOLDER: ----------------------------------** **P.K.KESAVA BABU, S/O.K.K.KESAVAN POTTY, NEETHI NIKETHAN, VASIMBHAGAOM MURI, NEDUMMUDY VILLAGE, ALAPPUZHA - 688 508.** ## **BY ADV. SRI.R.AZAD BABU** ## **RESPONDENTS/JUDGMENT DEBTORS:** **-----------------------------** |**1.**|**K.RAVEENDRAN, S/O.KOCHU KUNJU,**| |---|---| ||**KUZHAKKETHALAYAPALLIL (VISWA NIVAS),**| ||**KARUMADI PADINJARE MURI,**| ||**KARUMADY VILLAGE, ALAPPUZHA - 688 561.**| |**2.**|**OMANA, D/O.KOCHU KUNJU,**| ||**KIZHAKKETHALAYPALLIL (VISWA NIVAS),**| ||**KARUMADI PANDINJARE MURI,**| ||**KARUMADY VILLAGE, ALAPPUZHA - 688 561.**| **R1 BY ADV. SRI.K.V.SADANANDA PRABHU** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **ANIL K. NARENDRAN, J.** ------------------------------------------ ## **C.R.P.No.298 of 2015** ------------------------------------------- **Dated this the 13[th] day of November, 2017** ## **O R D E R** The revision petitioner, who is the decree holder in E.P.No.206 of 2011 in O.S.No.744 of 2003 on the file of the Additional Munsiff's Court, Alappuzha has filed this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 seeking an order to set aside the order dated 19.01.2015 of the said court in E.P.No.206 of 2011 in O.S.No.744 of 2003. 2. Heard the learned counsel for the revision petitioner/ decree holder and also the learned counsel for the respondents/ judgment debtors. 3. O.S.No.744 of 2003 was one filed by the petitioner/ plaintiff against the respondents/defendants seeking a decree for mandatory injunction, damages and permanent prohibitory injunction. By the judgment dated 28.02.2006 the suit was decreed in part, disallowing the relief of mandatory injunction and recovery of damages. The decretal portion of the said judgment, which has been extracted in paragraph 4 of the impugned order dated 19.01.2015 reads thus; “1. The defendants or men under them are restrained C.R.P.No.298 of 2015 2 from trespassing upon the plaint schedule property excluding the plaint schedule pura and kakkoose. 2. The defendants and men under them are restrained from causing any obstruction to the plaintiff from taking usufructs from the plaint schedule property and also from causing any obstruction to the peaceful possession and enjoyment of plaint schedule property and also from committing any waste in the property. 3. The defendants are also restrained from making any construction in the plaint schedule property. 4. Party shall bear their respective costs.” 4. Alleging that the judgment debtors have violated the terms of the decree and put up additional unauthorised structures in the decree schedule property, the decree holder filed E.P.No.206 of 2011 seeking an order to demolish the construction made on concrete pillars with sheet roofing near to the kitchen and the shop room constructed with stone, wood and asbestos roofing on the east of the residential building in the decree schedule property; to fix the boundary separating the residential building of the judgment debtors; and to realise the costs from the judgment debtors. 5. In E.P.No.206 of 2011, the first judgment debtor, the first respondent herein, filed objections contending that the C.R.P.No.298 of 2015 3 execution petition is not maintainable either in law or on facts. The execution petition is filed not in conformity with the decree passed in O.S.No.744 of 2003. According to the first judgment debtor, the construction sought to be demolished were in existence prior to the institution of O.S.No.744 of 2003. The decree holder knowingly suppressed all these things and the plaint schedule description was given wrongly. While decreeing the suit, the prayer for mandatory injunction was disallowed. The judgment debtors made no construction after the decree. Therefore, the decree holder is not entitled to demolish any constructions or to fix boundary and the prayer in E.P.No.206 of 2011 is not executable on the strength of the decree passed in O.S.No.744 of 2003 and confirmed by the appellate court. Hence, E.P.No.206 of 2011 is liable to be dismissed with costs. 6. The Advocate Commissioner deputed in E.A.No.194 of 2012 inspected the decree schedule property on 14.06.2013 and submitted his report. Before the execution court, Exts.B1 to B6 were marked on the side of the judgment debtors. After considering the rival contentions, the execution court dismissed E.P.No.206 of 2011 by the impugned order dated C.R.P.No.298 of 2015 4 19.01.2015, holding that the judgment debtors made no further constructions after the decree dated 28.02.2006 and as such, the prayer in the execution petition cannot be executed as it is totally against the said decree. There is no direction in the decree to demolish the structures and to fix the boundary of the residential building of the judgment debtors. Therefore, E.P.No.206 of 2011 is liable to be dismissed as not executable. 7. The relief of mandatory injunction sought for in O.S.No.744 of 2003 reads thus; “Pass a decree of mandatory injunction directing the defendants to remove the plaint schedule structures at their costs and in case of their failure to do so demolish and remove it through court and recover its costs from the defendants.” 8. In O.S.No.744 of 2003, the plaint schedule property is described as approximately 71 cents land with a residential building unauthorisedly constructed by the defendants with two rooms and kitchen, and also the toilet and bathroom on its western side. While decreeing the suit in part, the relief of mandatory injunction and recovery of damages were declined. Once the relief of mandatory injunction is declined, the plaintiff /decree holder is not entitled for removal of the buildings C.R.P.No.298 of 2015 5 referred to in the plaint schedule, i.e., the residential building with two rooms and kitchen, and also the toilet and bathroom on its western side. Though the relief of mandatory injunction was declined, as per the decree the defendants/judgment debtors and their men are restrained from trespassing upon the plaint schedule property, excluding the aforesaid residential building with two rooms and kitchen, and also the toilet. They are also restrained from causing any obstruction to the peaceful possession and enjoyment of plaint schedule property by the plaintiff and from committing any waste in that property. Further, the defendants are restrained from making any construction in the plaint schedule property. 9. In **Kanwar Singh Saini v. High Court of Delhi [(2012) 4 SCC 307]** the Apex Court held that, where a decree is for an injunction, and the party against whom it has been passed has wilfully disobeyed it, the same may be executed by attachment of his property or by detention in civil prison or both. The provision of Order XXI, Rule 32 of the Code of Civil Procedure, 1908 applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases C.R.P.No.298 of 2015 6 where the party is directed to do some act and also to the cases where he is abstained from doing an act. Still, to put it differently, a person disobeys an order of injunction not only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. Execution of an injunction decree is to be made in pursuance of the Order XXI, Rule 32, as the Code provides a particular manner and mode of execution and therefore, no other mode is permissible. (See: **Hungerford Investment Trust Ltd. (in voluntary liquidation) v. Haridas Mundhra [(1972) 3 SCC 684]** ). 10. The specific stand taken by the petitioner/decree holder in E.P.No.206 of 2011 is that, in violation of the decree in O.S.No.744 of 2003, which has been affirmed by the lower appellate court in A.S.No.57 of 2006, the respondents/ judgment debtors made constructions on concrete pillars with sheet roofing near the kitchen and the shop room constructed with stone, wood and asbestos roofing on the east of the residential building in the decree schedule property. The decree holder sought for demolition of those constructions C.R.P.No.298 of 2015 7 through court and to fix the boundary separating the residential building of the judgment debtors. 11. Per contra, the first respondent/first judgment debtor filed objections contending that, the execution petition is filed not in conformity with the decree passed in O.S.No.744 of 2003 and that, the construction sought to be demolished were in existence prior to the institution of O.S.No.744 of 2003. The decree holder knowingly suppressed all these things and the plaint schedule description was given wrongly. 12. In the execution petition, pursuant to the order dated 11.04.2013 in E.A.No.194 of 2012, an Advocate Commissioner was deputed. The Advocate Commissioner, who inspected the plaint schedule property on 14.06.2013, submitted a report based on the inspection conducted. In the said report, the Advocate Commissioner noted the presence of additional constructions sought to be demolished in E.P.No.206 of 2011, which is reported to be lying in dilapidated condition. 13. The petitioner/decree holder has filed his objection dated 21.08.2013 to the Advocate Commissioner, contending that the additional constructions noted in the report of the C.R.P.No.298 of 2015 8 Advocate Commissioner were made subsequent to the decree in O.S.No.744 of 2003 and as such, constructions other than those referred to in the decree schedule are liable to be demolished. He has also contended that, the report of the Advocate Commissioner can be accepted only subject to the detailed objection dated 21.08.2013 of the decree holder. 14. The learned counsel for the respondents/judgment debtors placed reliance on Ext.B3 Building Tax Assessment Register maintained by the Municipal Corporation, Alappuzha. However, the said document would only show the existence of a residential building in the plaint schedule property, with 2/3 rooms and a kitchen, which is assessed in the name of the first respondent/first judgment debtor. 15. A perusal of the objections dated 21.08.2013 of the petitioner/decree holder would show that, immediately after the report of the Advocate Commissioner, the decree holder has filed the said objections against each and every finding of the Advocate Commissioner in his report. However, the execution court proceeded with the matter as if the decree holder filed no objection against the report of the Advocate C.R.P.No.298 of 2015 9 Commissioner. Even without adverting to any such objections, the execution court accepted the report of the Advocate Commissioner and concluded that the judgment debtors made no constructions subsequent to the decree dated 28.02.2006 and therefore, the prayer in E.P.No.206 of 2011 cannot be executed as it is totally against the decree. In such circumstances, I find absolutely no reason to sustain the order dated 19.01.2015 of the Additional Munsiff's Court, Alappuzha in E.P.No.206/2011 in O.S.No.744/2003. 16. In the result, this Civil Revision Petition is disposed of setting aside the order of the Additional Munsiff's Court, Alappuzha dated 19.01.2015 in E.P.No.206 of 2011 in O.S.No.744 of 2003 and the said court is directed to reconsider the matter, after taking into consideration, the objection dated 21.08.2013 of the petitioner/decree holder to the report of the Advocate Commissioner, and also the law laid down by the Apex Court in **Kanwar Singh Saini's case (supra)** . Such orders shall be passed, as expeditiously as possible, at any rate within a period of three months from the date of production of a certified copy of this judgment. C.R.P.No.298 of 2015 10 17. It is submitted by learned counsel for the respondents/judgment debtors that parties may be given an opportunity to explore the possibility of settlement of the dispute through mediation. If any such request is made, the execution court shall consider the same in accordance with law. Sd/- **ANIL K. NARENDRAN, JUDGE** rmm/ // True Copy // P.A. To Judge