IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 CRP.No. 2630 of 2001(D) ----------------------- AGAINST THE ORDER DATED 09/08/2001 IN EP. 41 /1995 IN OS.37/1988 of MUNSIFF COURT, KARUNAGAPPALLY .................... REVN. PETITIONER(S)/DECREE HOLDER: --------------------- L.BHAVANI AMMA, THUNDATHIL VEEDU, VADAKKUMTHALA MEKKUM MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI M.P.MADHAVANKUTTY RESPONDENT(S)/JUDGMENT: --------------- (*)1. THEVAN VELUMBAN, AYANICHERIYTHEKKETHIL, VADAKKUMTHALA MEKKUM MURI, VADAKKUMTHALA VILLAGE (DIED. LRS IMPLEADED) (**)2. TEVAN CHELLAPPAN, -DO- -DO- (DELETED) 3. SANKARANKUTTY PILLAI (MURALEEDHARAN PILLAI), THUNDIL VEEDU, OF -DO- (G.S.PILLAI, NOW RESIDING AT NICHRU NAGAR, DEBBUGUDA, JAYAPORE P.O., KARAPUT DISTRICT, ORISSA STATE). 4. JAMEELA SUDHAKARAN, KANICHERRITHEKKATHIL, VADAKKUMTHALA MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY. 5. VELUMBAN SUDHAKARAN, -DO- -DO- ADDL.RESPONDENTS 6 & 7 IMPLEADED: 6. KLARA VELUMBAN, (WIFE OF DECEASED FIRST RESPONDENT) @ THANKAMMA, KANICHERI THEKKETHIL, VADAKKUMTHALA MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY. 7. SUBHADRA SADHASIVAN, D/O.VELUMBAN, WORKING IN THE MUNICIPAL OFFICE, MUNICIPAL OFFICE, PATHANAMTHITTA. (*) ADDL.RESPONDENT NOS.6 AND 7 ARE IMPLEADED AS PER ORDER DATED 19.2.2010 IN IA NO.1972/2004. CRP NO.2630/2001 2 (**)THE SECOND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER THE ORDER DATED 7.7.2004 IN IA NO.1973/2004. ADV. SRI.D.SOMASUNDARAM FOR R4 & R5 SRI.P.G.GOPINATHA PILLAI FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.2630 OF 2001 -------------------------------------- Dated this the 2nd day of June, 2010. ORDER Revision petition arises at the instance of decree holder/plaintiff from order dated 09.08.2001 on E.P.No.41 of 1995 in O.S.No.37 of 1988 of the court of learned Munsiff, Karunagappally. Petitioner who claimed to have a life interest over plaint A schedule property which belonged to respondent No.3, her son sued for declaration of right of easement by way of prescription over plaint B schedule claiming that herself and her predecessors-in-interest were gaining access to plaint A schedule through plaint B schedule. Respondent Nos.1 and 2/defendant Nos.1 and 2 remained exparte and even without a report of Advocate Commissioner showing existence of the disputed pathway learned Munsiff passed an exparte decree in favour of petitioner/decree holder. Later E.P.No.41 of 1995 was filed against respondent Nos.1 and 2 and respondent Nos.4 and 5, assignees of a portion of property belonging to respondent Nos.1 and 2. An Advocate Commissioner was appointed in the case. Advocate Commissioner submitted report stating that he was not able to identify the disputed pathway. No further action was taken by petitioner in that regard. Instead, her son gave evidence regarding alleged obstruction and when and where alleged obstruction was caused. He was not cross-examined by respondent Nos.1,2 ,4 and 5. But executing court was not satisfied with the (uncontroverted) evidence of PW1 to hold that there was violation of decree at the instance of respondent Nos.1,2, 4 and 5 and accordingly execution petition CRP No.2630/2001 2 was dismissed. Executing court found from the evidence of PW1 that according to him instead of the disputed B schedule pathway, respondent Nos.1, 2,4 and 5 have provided an alternative way for the use of petitioner and respondent No.3 and which they are using. Dismissal of E.P.No.41 of 1995 is under challenge in this revision petition. During pendency of revision petition respondent No.1 died and her legal representatives are impleaded as additional respondent Nos.6 and 7. Learned counsel for petitioner contends that the uncontroverted evidence of PW1 should have been accepted by the executing court and that at any rate the report submitted by the Advocate Commissioner may be remitted to him for proper identification of plaint B schedule. Learned counsel for respondent Nos.4 and 5 contended that on the materials on record there is no reason to interfere with the impugned order. 2. Prayer in the execution petition is for detention of respondent Nos.1,2,4 and 5 (of whom respondent No.1 is no more) for disobeyance of the decree for injunction. Detention under Order 21 Rule 32 of the Code of Civil Procedure (for short, “the Code”) is possible only when there is willful disobedience of the decree. That is a matter which petitioner/decree holder has to plead and prove. There is nothing on record to show that there was any such violation in that even the disputed plaint B schedule could not be identified by the Advocate Commissioner. It is seen that though petitioner had preferred objection to the report of Advocate Commissioner neither was the Commissioner examined nor steps taken to remit report of Advocate Commissioner. Learned counsel seeks an opportunity to take steps for remission of report of Advocate CRP No.2630/2001 3 Commissioner. 3. The court was pleased to grant an exparte decree in favour of petitioner protecting her right over plaint B schedule. I think, petitioner must be given opportunity to enjoy the fruits of the decree. But in the existing circumstances, no relief can be granted to the petitioner. It is for the petitioner to identify the disputed property and show that there is obstruction caused to the said way. Having regard to the facts and circumstances I am inclined to allow petitioner to take steps in the matter. It will be open to the petitioner to file appropriate application in the executing court for remission of the report to the Advocate Commissioner and collect further information through Advocate Commissioner. Resultantly, the revision petition is allowed. Order under challenge is set aside and E.P.No.41 of 1995 in O.S.No.37 of 1988 is remitted to the executing court for fresh consideration and disposal after giving petitioner opportunity to seek remission of report of Advocate Commissioner. I make it clear that both sides will get opportunity to adduce evidence. Parties shall appear in the executing court on 30.06.2010. C.M.P.No.5569 of 2001 will stand dismissed. THOMAS P.JOSEPH, Judge. cks CRP No.2630/2001 4 Thomas P. Joseph, J. C.R.P.No.2630 of 2001 ORDER 2nd June, 2010.