High Court of KeralaSingle Judge2017-08-08Revision petition dismissed; order of the Munsi...

Unnikrishnan v. Saji Paul

Case / Petition Number:CRP.No. 595 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2017-08-08
Court Decision / Holding: The revision petition is dismissed with costs. The High Court upheld the order of the Munsiff, confirming that after delivery of possession the executing court has the power to enforce the decree for possession, including removal of obstructions and pendente lite structures. The court directed that the petitioner be detained in civil prison for three months for violating the injunction, and that the necessary dismantling and reconstruction be carried out either by the petitioner or under supervision, as directed by the executing court. The records are to be transmitted back for the execution process to proceed forthwith.
Final Disposition: Revision petition dismissed; order of the Munsiff upheld; costs to the respondent

Parties to the Case

Appellants / Petitioners

Unnikrishnan

Respondents

Saji Paul

Legal Representation & Advocates

Counsels for Petitioners

• Sri A.X Varghese
• Sri A.V Jojo

Counsels for Respondents

• Sri P Viswanathan

Case Synopsis & Summary

Unnikrishnan, the judgment debtor, challenged an execution order of the Principal Munsiff, Ernakulam, in the decree in O.S. No. 429 of 2009, E.P. No. 308 of 2013. The suit filed by Saji Paul sought a declaration of title and recovery of the plaint C schedule property. After the decree and a subsequent appeal, which was dismissed, possession of the C schedule property was delivered to the decree holder. Following possession, the decree holder constructed a boundary wall separating the B and C schedule properties. The judgment debtor thereafter trespassed into the C schedule property, demolished a portion of the boundary wall, and placed a coop in the C schedule; the decree holder sought removal of the coop and restoration of the boundary, as well as detention of the judgment debtor in civil prison for violating a permanent injunction. The Munsiff found that the decree holder had proven trespass post-delivery of possession and ordered dismantling of the coop, removal of the obstructing structure, and reconstruction of the boundary wall within 15 days, with supervision by an Advocate Commissioner if needed. It also directed detention of the petitioner in civil prison for three months for the breach of injunction. The petitioner contended that the structure is actually a hut belonging to his sister with a right to reside. The respondent relied on Gangadhar v. Rajalingam to argue that the executing court retains power to enforce the decree for possession after delivery, including removal of obstructions. The High Court upheld the findings and dismissed the revision petition, directing the execution to proceed accordingly.

Provisions of Law Cited

O.21 R.35(3)

Legal Doctrines & Maxims

Multiplicity of proceedings is prohibited by the Code of Civil Procedure
Mandatory injunction is incidental to or necessary for effectuation of the decree for possession

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the so-called coop is actually a dwelling hut belonging to his sister, who has a right to reside in it. He asserts that the photographs and the Advocate Commissioner’s report show the structure is not a movables obstruction but a residence, and that his sister’s rights must be recognized. The plea challenges the characterization of the structure and argues that the decree holder cannot demolish or forcibly remove a dwelling through execution. He also contends that the boundary wall’s construction and the alleged acts of trespass occurred without clear coercive directions, and that the court should exercise caution in enforcing drastic measures like civil imprisonment, especially where familial rights and occupancy are involved. The petitioner urges reevaluation of the evidence and urges that a more limited, proportionate remedy be adopted rather than drastic demolition and imprisonment.

Contentions of Respondents

The respondent contends that the structure in question is a coop placed in the C schedule property to lay claim to the land, supported by the Advocate Commissioner’s report, which indicates trespass and constructive alteration of the property after possession was delivered. He argues that the decree for possession, once final, empowers the executing court to take necessary measures for enforcing the decree, including removal of obstructions and pendente lite structures, and to impose appropriate consequences for violations of the permanent injunction. The respondent relies on Gangadhar v. Rajalingam to justify the court’s inherent power to ensure effective enforcement of the decree for possession, including at times extending to detention in civil prison where violations are established. He asserts that the tenant’s, or occupant’s, actions undermine the decree’s purpose, and that the court correctly found breach and ordered corrective and punitive actions to restore and protect the decree’s rights.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Gangadhar v. Rajalingam	1995(5) SCC 238	Positive	Cited favorably to support the proposition that the executing court may enforce possession and remove obstructions/structures placed pendente lite after delivery of possession.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939** **CRP.No. 595 of 2015 () -----------------------** **E.P NO.308/2013 IN O.S NO.429 OF 2009 OF PRINCIPAL MUNSIFF'S COURT, ERNAKULAM.** **REVISION PETITIONER/JUDGMENT DEBTOR/DEFENDANT:** **---------------------------------------------** **UNNIKRISHNAN, AGED 55 YEARS, S/O KRISHNAN, KANICHIRA HOUSE, KURIKKAD VILLAGE, THIRUVANKULAM, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.A.X.VARGHESE** **SRI.A.V.JOJO.** **RESPONDENT/DECREE HOLDER/PLAINTIFF:** **----------------------------------** **SAJI PAUL, AGED 53 YEARS, S/O.T.P.PAUL, THULULAN HOUSE, KURIKKAD, THIRUVANKULAM, KANAYANNOOR TALUK, ERNAKULAM DISTRICT - 682 305.** **BY ADV. P VISWANATHAN** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRP.No. 595 of 2015 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** |**ANNEXURE A1 **|**:**|**TRUE COPY OF THE JUDGMENT DATED 5-6-2014 IN A.S**| |---|---|---| |||**NO.59 OF 2012.**| |**ANNEXURE A2 **|**:**|**TRUE COPY OF THE EXECUTION PETITION DATED**| |||**28-11-2013 FILED BEFORE THE MUNSIFF'S COURT,**| |||**ERNAKULAM.**| |**ANNEXURE A3 **|**:**|**PHOTOGRAPHS SHOWING THE HUT OF THE PETITIONER'S**| |||**SISTER.**| |**ANNEXURE A4 **|**:**|**TRUE COPY OF the REPORT SUBMITTED BY THE ADVOCATE**| |||**COMMISSIONER DATED 6-11-2014.**| ## **RESPONDENT'S ANNEXURES : NIL.** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A. HARIPRASAD, J.** ## **------------------------------C.R.P No.595 of 2015 ---------------------------------------------Dated this the 8[th] day of August, 2017** ## **O R D E R** Petitioner, the judgment debtor, aggrieved by an order passed by the Principal Munsiff, Ernakulam, while executing the decree in O.S No.429 of 2009 in E.P No.308 of 2013 has come up in this revision petition. 2. Despite the matter coming up in the published hearing list on yesterday and today, there is no representation for the petitioner. Learned counsel for the respondent strongly pressed for a decision in this matter on merit. 3. Petitioner is the defendant in a suit for declaration of title of the plaintiff/respondent and recovery of plaint 'C' schedule property from his possession. The suit was decreed against which an appeal was filed. That appeal was dismissed and thereby the decree has become final. The decree was executed and possession of plaint **C.R.P No.595 of 2015 2** 'C' schedule was taken by the respondent/plaintiff through the help of police. Later, the petitioner/judgment debtor again trespassed into the property by demolishing a portion of the common boundary wall and by placing a coop in a portion of the plaint 'C' schedule property. The decree holder sought that structure to be removed and the compound wall to be restored to its original position. The decree holder also sought for detention of the petitioner/judgment debtor in civil prison for violating the decree for permanent prohibitory injunction. 4. Learned Munsiff considered the matter extensively and observed thus : _..... In view of the aforesaid aspects, I am of the view that the decree holder had succeeded in proving that the judgment debtor after passing of the decree and getting vacant possession of plaint C schedule by the decree holder and after the construction of boundary wall separating the plaint B and C schedule property had trespassed in to the plaint C_ **C.R.P No.595 of 2015 3** _schedule and made certain constructions in it. In these circumstances I feel that an order has to be passed directing the judgment debtor to dismantle and remove the coop/cage from the decree C schedule property by deputing an Amin. I also feel that the judgment debtor is to be directed to construct the boundary wall on the south western portion of decree A schedule property within 15 days from today. In case of failing to do so, the decree holder can do the same under the supervision of an Advocate Commissioner and can recover the expenses from the judgment debtor. From the evidence, it is clear that the judgment debtor had wilfully violated the decree of injunction passed against him. Hence I am of the view that the judgment debtor is also ordered to be detained in the Civil Prison for a period of 3 months for violating the decree of Permanent prohibitory injunction passed by this court.”_ 5. Ultimately, the learned Munsiff directed the petitioner/judgment debtor to dismantle and remove the coop from **C.R.P No.595 of 2015 4** the decree 'C' schedule property within 15 days. If he failed to do so, the decree holder/respondent could do the same under supervision of an Amin and recover the expenses from the petitioner. Similarly, the petitioner was directed to reconstruct the breached boundary wall. If the petitioner failed to do so, the decree holder was permitted to do the same at the expense of the petitioner/judgment debtor. It was further directed that the petitioner/judgment debtor shall be detained in civil prison for a period of three months for violating the decree for permanent prohibitory injunction. 6. The contention raised by the petitioner in the revision petition is that the structure, said to be a coop by the respondent/decree holder is actually a dwelling hut. It is also contended that his sister has right to reside in the hut. Merit of all these contentions was examined by the court in the light of the photographs and report submitted by the Advocate Commissioner appointed in execution proceedings. It has been clearly mentioned by the Commissioner that a portion of the compound wall separating **C.R.P No.595 of 2015 5** plaint 'D' and 'C' schedule had been demolished for gaining entry into the property belonging to the decree holder (plaint 'C' schedule). It is further mentioned by the Commissioner that a structure, more like a cage/coop, has been placed in plaint 'C' schedule so as to lay a claim over the property. The court below, on analysis of the materials produced, correctly found that the petitioner/judgment debtor had violated the terms of the decree and after delivery of possession to the respondent, he again trespassed and made unauthorised construction by demolishing the compound wall. 7. Learned counsel for the on respondent relying _**Gangadhar v. Rajalingam (1995(5) SCC 238)**_ contended that the court, after delivering property, retains power for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or super-structure made pendente lite. Reliance is placed on paragraph 8 : _“8. R.35(3) of O.21 itself manifests that when a decree for possession of immovable property was granted and delivery of possession was_ **C.R.P No.595 of 2015 6** _directed to be done, the Court executing the decree is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or super-structure made pendente lite. The exercise of incidental, ancillary or inherent power is consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgment debtor or a person interested or claiming right through the judgment debtor has taken law in his hands and made any construction on the property pending suit, the decree holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the Court._ **C.R.P No.595 of 2015 7** _Otherwise, the decree becomes inexecutable driving the plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceedings.”_ On going through the impugned order, I am of the view that the court below has considered all the matters correctly and meticulously. I find no illegality or irregularity warranting an interference. Therefore, the revision petition is dismissed with the costs of the respondent. The Registry shall send back the records, so that the execution court can proceed with the matter forthwith. Sd/- **JUDGE** **A. HARIPRASAD** //True copy// **amk** P.A to Judge