IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 37163 of 2008(Y) -------------------------- OS.278/2002 of MUNSIFF COURT,ALUVA .................... PETITIONER(S): ------------------------- SURESH BABU, S/O. KUMARAN, THACHETTU HOUSE, ASOKAPURAM, ALUVA. BY ADVS. MR.A.JAYASANKAR, MR.MANU GOVIND. RESPONDENT(S): ---------------------------- 1. SRI. MOHAMMED ASEEM, S/O. KUNJALI NAINA, VEZHAPPILLY HOUSE, PALACE ROAD, ALUVA. 2. SMT. HALEEMA NAINA, W/O. KUNJALI NAINA, VEZHAPPILLY HOUSE, PALACE ROAD, ALUVA. 3. SRI.V.K. HARIS, VEZHAPPILLY HOUSE, PALACE ROAD, ALUVA. 4. THE ALUVA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ALUVA - 683 102. R1 TO R3 BY ADV.MR.A.VIJAYAKUMAR R4 BY ADV.MR.V.M.KURIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2009, THE COURT ON 10/08/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.37163/2008 Y APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF JUDGMENT DTD. 30/09/2004 IN O.S.278/02. P2: COPY OF DECREE IN O.S.278/02. P3: COPY OF EXECUTION PETITION 4/08 IN O.S.278/02. P4: COPY OF OBJECTION DTD. 14/03/08 BY PETITIONER (JD2) TO EXHIBIT P3. P5: COPY OF COMMISSION APPLICATION DTD. 28/08/08 MADE BY COUNSEL FOR R1-R3 (DH) AS EA 151/08 IN EP 4/08. P6: COPY OF OBJECTION DTD. 29/08/08 BY PETITIONER (JD2)TO EXHIBIT P5. P7: COPY OF COMMISSION APPLICATION DTD. 22/09/08 IN E.A.161/08 IN EP 4/08. P8: COPY OF ORDER DTD. 29/09/08 IN EP 4/08 IN O.S.278/02. P9: COPY OF JUDGMENT DTD. 24/11/08 IN WPC. 30104/08. P10: COPY OF ORDER DTD. 02/12/2008 IN E.A.161/08 IN EP 4/08 IN O.S.278/02. P11: COPY OF ORDER DTD. 02/12/08 IN E.P.4/08 IN O.S.278/02. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE PLAINT IN O.S.278/02 OF MUNSIFF'S COURT, ALUVA. R1(B): COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT REGARDING THE OLD WARD NO. AND THE PRESENT SY.NO. R1(C): COPY OF .A.226/08 IN E.P.4/08 FILED BY THE OBSTRUCTOR UNDER O.21 R.97. R1(D): COPY OF THE W/S. IN O.S.278/02 BY THE WRIT PETITIONER. /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37163 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 10th August, 2009 JUDGMENT The Writ Petition is filed seeking the following relief: “To quash Ext.P10 and P11 orders dated 2.12.2008 in E.P.4/08 in O.S.No.278/02 and direct the same to be reconsidered in accordance with law.” 2. Petitioner is the 2nd judgment debtor in E.P.No.4 of 2008 in O.S.No.278 of 2002 on the file of the Munsiff Court, Aluva. The respondents 1 to 3 are the plaintiffs/decree holders, and the 4th respondent is the first defendant/first judgment debtor, which is a local authority. The above suit was for injunction both prohibitory and mandatory. Mandatory injunction was sought for to demolish B schedule structure, a bunk shop, alleged to have been illegally put up by the second defendant in a portion of A schedule belonging to the plaintiff, and prohibitory injunction was sought for to restrain the defendants from operating that bunk shop after such demolition. Both the defendants resisted the suit claim filing separate written statements. Suit after trial was decreed and the first defendant/local authority was directed by a decree of mandatory injunction to remove the illegally constructed B schedule bunk shop, and both the W.P.C.No.37163/08 - 2 - defendants by a decree of prohibitory injunction from operating that bunk shop after such demolition. The decree, on failure of the first defendant to demolish the structure, allowed the plaintiffs to get it removed through the process of court and realise the cost. The aforesaid execution petition was filed on default of the first defendant-local authority to comply with the decree of mandatory injunction directing the removal of the structure. The second judgment debtor resisting the execution petition filed objections and moved a commission application as E.A.No.161 of 2008 to determine certain matters. P7 is the copy of that application. The decree holder moved an application for appointment of a commission as E.A.No.151 of 2008 to oversee the demolition of the structure in execution of the decree with the assistance of the Amin. The execution court allowed the application of the decree holder for appointment of a commission to supervise the demolition. P8 is the copy of that order. The application moved by the second judgment debtor for appointment of a commission was dismissed by Ext.P10 order. P11 order was passed by the court deputing the Amin to demolish the structure under the supervision of the Advocate Commissioner. The 2nd judgment debtor has filed the Writ Petition challenging the propriety and correctness of P10 and P11 orders invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.C.No.37163/08 - 3 - 3. I heard the learned counsel for the petitioner and also the respondents 1 to 3, the decree holders. Learned counsel for the petitioner/2nd judgment debtor canvassed arguments before me impeaching the propriety and correctness of P10 and P11 orders with reference to the identity of B schedule bunk shop contending that under the decree executed another bunk shop having a different number as distinct from the number shown in the B schedule in the plaint and also in the decree is proceeded to be demolished by virtue of P11 order passed by the executing court. Determination of the identity of the bunk shop under the decree by allowing P7 commission application by the 2nd judgment debtor is essential before any further step is taken for execution of the decree, according to the counsel. Reference is also made to some other litigations pending in which right, title and possession of 2nd judgment debtor over a bunk shop having a different number other than that stated in 'B' schedule, and that is yet to be adjudicated, is also highlighted by the counsel to contend that appointment of a commission as sought for under P8 application to identify the decree schedule bunk shop earmarked for demolition before the decree is being executed is essential to advance the ends of justice. Learned counsel for the decree holders, on the other hand, contended that there is no merit in the objections raised by the 2nd judgment debtor and he is incompetent even to resist the W.P.C.No.37163/08 - 4 - decree as the decree of mandatory injunction is issued against the first judgment debtor, the local authority, to demolish the bunk shop which had been illegally put up in a portion of A schedule property belonging to the decree holders. 4. Though the reliefs in the petition are confined to challenges against P10 and P11 orders as referred to above, it is surprising to note that the attempt of the petitioner/2nd judgment debtor is to reopen P8 order passed earlier by the execution court which had been challenged before this court by him and found against in W.P.C.No.30104/08. Disposing of that Writ Petition of the 2nd judgment debtor, this court has held thus: “Second judgment debtor has no voice in the matter to resist execution of the executable portion of the decree which is as against the first judgment debtor only. All the same, if he is still unauthorisely conducting business in the structure illegally constructed in 'B' schedule property, he has to be removed forcibly if need be while demolishing the building. There is absolutely no merit in this Writ Petition praying for Ext.P8 order being quashed. The petitioner/second judgment debtor is not entitled to any relief and this Writ Petition deserves only to be dismissed.” W.P.C.No.37163/08 - 5 - Pursuant to the dismissal of that Writ Petition upholding Ext.P8 order passed by the court below, it is seen, as ground No.B in the Writ Petition the petitioner/2nd judgment debtor has raised a challenge as follows: “Exts.P8, P10 and P11 orders are against facts, law and circumstances of the case. The findings entered into are factually incorrect and legally inadmissible. Same are based on surmises and conjunctures.” Needless to point out, whatever be the challenge of the petitioner against Ext.P8 order, it cannot be countenanced and deserve to be taken note of only for its rejection in the light of P9 judgment rendered by this court. Though the learned counsel for the petitioner/2nd judgment debtor made strenuous and forcible arguments to canvass that the conclusion formed in P9 judgment in the previous Writ Petition will no way affect that judgment debtor in challenging P10 and P11 orders, I am not persuaded to accept the submission. It is interesting to note that in the plaint, a copy of which is produced by the decree holders, B schedule is described as a bunk shop bearing No.XVIII/433 taking an approximate area of about 8 square metre. The allegations raised in the plaint would show that it is placed in plaint A schedule property over which the plaintiffs claimed title and possession to seek decree of mandatory and W.P.C.No.37163/08 - 6 - prohibitory injunction for removal of the bunk shop and to restrain the defendants from putting up any bunk after removal of B schedule bunk shop. However, in the light of the defence canvassed by the second judgment debtor setting up right, title and possession over 200 square links contending that his bunk shop with different number is situate therein, it appears, in the judgment while negativing and ruling out his contentions, plaint B schedule had been described as a portion of the property taking in a bunk shop as situate in 8 square metres of land in a portion of A schedule. P1 is the copy of the judgment. However, it is noticeable from P2 decree, B schedule is a the bunk shop, taking an approximate area of 8 square metres, bearing AMC 18/433. Any dispute over the identity of the bunk shop by the second judgment debtor raking up the contentions advanced earlier in his written statement which were found against him and negatived by the court after trial on the plea that the bunk shop with a different number as situate in 200 square metres property on which he has got absolute title and possession is bereft of any value and, further, cannot at all be countenanced. He is bound by the decree and it is not open to him to set forth challenges as to the identity of the bunk shop showing that he is in possession of a different bunk shop in a property under his ownership to resist the decree. Whatever be the litigations pending in respect of his claim W.P.C.No.37163/08 - 7 - over the bunk shop in which he has put up a right of ownership, that will not enable him to resist the execution of the present decree and prevent the decree holders from enjoying the fruits of that decree. In this context, it is appropriate and profitable to refer to the decision rendered by the apex court in Deep Chand and others v. Mohan Lal [ (2000) 6 S.C.C. 259] which read thus: “The purpose of execution proceeding is to enable the decree holder to obtain the fruits of his decree. In case where the language of the decree is capable of two interpretations, one of which assists the decree holder to obtain the fruits of the decree and the other prevents him from taking the benefits of the decree, the interpretation which assists the decree holder should be accepted. The execution of the decree should not be made futile on mere technicalities which does not, however, mean that where a decree is incapable of being executed under any provision of law it should, in all cases, be executed notwithstanding such bar or prohibition. A rational approach is necessitated keeping in view the prolonged factum of litigation resulting in the passing of a decree in favour of a litigant. The W.P.C.No.37163/08 - 8 - policy of law is to give a fair and liberal and not a technical construction enabling the decree holder to reap the fruits of his decree.” The executable decree passed by the court, as pointed out by the court, is against the first judgment debtor to the local authority mandating it to remove the bunk shop placed illegally in a portion of the A schedule property of the decree holders. Even assuming that the number of the bunk shop in that property is found to be different, as and when Amin visits the property, it is liable to be demolished and removed in the light of the decree passed by the court. The execution court has to take appropriate and necessary steps to execute the decree, if essential by ordering police aid, if applied for by the decree holders, where it is prima facie shown that the local authority, despite a decree of mandatory injunction being passed against it has not complied with the decree. Writ Petition is devoid of any merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE