IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 CRP.No. 223 of 2007() --------------------- OS.188/1999 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... REVN. PETITIONER(S)/PETITIONER/ADDL.JUDGMENT DEBTOR NO.14: ----------------------------------------------------------- JAMES, S/O. JOSEPH, VALIYAVEETTIL (VAZHAPPARAMBIL),ARUVITHURA KARA, ERATTUPETTA KARA, ERATTUPETTA VILLAGE. BY ADV. SRI.P.V.GEORGE(ONAKKOOR) SRI.RAJEEV.P.NAIR SRI.REJI GEORGE SRI.PAULCY KURIAN SMT.MANJU RAJAN RESPONDENT(S)/DECREE HOLDER&JDMT.DEBTOR 2&3 & ADDL.JDMT.DTR.4-20 ----------------------------------------------------------------- 1. MATHEW, S/O. KUKRUVILLA, VELLOOKKUNNEL HOUSE, KONDOOR KARA AND VILLAGE, ARUVITHURA P.O. 2. JAISON, S/O. SEBASTIAN, ARACKAL HOUSE, -DO- -DO-. 3. MATHEW, S/O. VARKEY, ATTUCHALIL HOUSE, -DO- -DO-. 4. THOMAS @ TOMY, MANIYAKKUPARA, PERINGALAM KARA, POONJAR THEKKEKARA VILLAGE. 5. K.C. SEBASTIAN, KOTTUKAPPALLIL, NADACKAL KRA, ERATTUPETTA VILLAGE. 6. ELSAMMA, W/O. LATE VARKEY, PUTHENPARAMBIL, KONDOOR VILLAGE AND KARA. 7. ANEESH (MINOR), S/O. LATE VARKEY, -DO- -DO-. (REPRESENTED BY HIS GUARDIAN RESPONDENT NO.6). CRP.223/07 8. VINEESH (MINOR), S/O. LATE VARKEY, -DO- -DO-. (RESPONDENT BY HIS GUARDIAN, RESPONDENT NO.6). 9. MANEESH (MINOR), S/O. LATE VARKEY, -DO- -DO-. (REPRESENTED BY HIS GUARDIAN, RESPONDENT NO.6). 10. ANOOP (MINOR), S/O.LATE VARKEY, -DO- -DO-. (REPRESENTED BY HIS GUARDIAN RESPONDENT NO.6). 11. MARY SUNNY, KOTTUKAPPALLIL HOUSE, NADACKAL KARA, ERATTUPETTA VILLAGE. 12. AUGUSTHY AUGUSTHY, S/O. AUGUSTHY, KATTACKAL, POOVATHODU BHAGOM, KEEZHAMPARA KARA, KONDOOR VILLAGE. 13. KURIAN AUGUSTHY, S/O. AUGUSTHY, KATTACKAL, KEEZHAMPARA KARA, KEEZHAMPARA VILLAGE. 14. PHILIP, S/O. KUNJAPPAN, MADATHIL HOUSE, KONDOOR KARA AND VILLAGE. 15. JAMES, K.VEEDEN, VALIYAVEETTIL (KUNNEPARAMBIL), ARUVITHURA KARA, ERATTUPETTA VILLAGE. (EXPIRED) 16. KUTTAPPAI (K.P.KUTTAPPAN), S/O. KOCHUPALAN, KURINJITHOTTU, KONDOOR KARA AND VILLAGE. 17. RAJU, S/O. KUNJUMON, MUNDAPLACKAL, -DO- -DO-. 18. KUNJUMON, S/O. KUTTY, -DO- -DO-. 19. JOSE, S/O. VARGHESE, ANITHOTTATHIL, -DO- -DO-. IT IS RECORDED THAT THERE IS NO NECESSITY TO IMPLEAD LR.S OF DECEASED R15, AS PER ORDER DATED 28.1.2009. ADV. SRI.RAJEEV V.KURUP FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.223/07 ORDER IN I.A.NO.616/2007 IN C.R.P.NO.223/2007 DISMISSED. 8.3.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.223 OF 2007 () ----------------------------------- Dated this the 8th day of March, 2010 O R D E R Revision is directed against the order passed by the learned Munsiff in a proceeding under Order XXI Rule 32 of the Code of Civil Procedure. Revision petitioner with some others was proceeded against on the application of the decree holder imputing that they had violated the decree of injunction passed by the court in O.S.No.188 of 1999. In the above suit, a decree of perpetual prohibitory injunction was passed in favour of the decree holder restraining some defendants, who were sued in representative capacity as members of the public, from tampering with or interfering with the decree schedule property, which is a private road leading to the house of the decree holder. Pursuant to the decree, some members of the public including the revision petitioner violated the decree carving out sub roads opening to the decree schedule property, a private road, was the grievance espoused by the decree holder to proceed against them CRP.223/07 2 moving the application under Order XXI Rule 32 of the Code of Civil Procedure. Some of the respondents including the revision petitioner filed objections jointly against the case set up by the decree holder. In the enquiry on the above application, the decree holder and two of his witnesses were examined. The advocate commissioner who had conducted local inspection on the trial side and filed a report was examined as one among the witnesses of the decree holder and the report earlier filed by him was exhibited as Ext.C1. Decree holder has also exhibited in evidence Exts.A1 to A4 to prove his case. No counter evidence was let in by the revision petitioner or any other judgment debtor proceeded against. The learned Munsiff after appreciating the materials produced and hearing the counsel on both sides concluded that the decree had in fact been violated for the purpose of transporting timber to the property of the revision petitioner, the 14th judgment debtor by making an opening from the private way, the decree schedule property. Taking note that the revision petitioner/14th judgment debtor was not a party to the suit, the court passed an order directing him to close down CRP.223/07 3 the newly constructed road opening to the private way putting up a boundary wall, within the time limit fixed. In default of the revision petitioner to comply with the directions, the decree holder was granted liberty to put up the boundary wall and realise the costs from the revision petitioner/14th judgment debtor. Propriety and correctness of that order is challenged in the revision. 2. I heard the counsel on both sides. The learned counsel for the revision petitioner referring to the plan prepared by the Advocate Commissioner on the trial side, which had been exhibited with the report as Ext.C1 in the execution proceedings, submitted that though the decree schedule is described as having a length of 1100 feet, the road identified by the Commissioner is limited to 350 feet. It is further submitted that the decree holder has no case that the tampering alleged to have been made by the 14th judgment debtor formed part of the road identified by the Commissioner in his plan. The judgment debtors have raised a challenge imputing the identity of the decree schedule property and CRP.223/07 4 that being so, without proper identification, according to the counsel, the learned Munsiff was not justified in holding that the decree had been violated by the judgment debtors. On the contrary, the learned counsel appearing for the decree holder contended that no counter evidence was let in by any of the judgment debtors other than filing objections resisting the application. The materials produced in the case have convincingly established that the decree had been wilfully and deliberately violated by the judgment debtors. The order passed by the court, that too restricting its scope only for undoing the mischief committed, according to the counsel, does not warrant any interference in exercise of the revisional jurisdiction. 3. I have considered the rival submissions made with reference to the order impugned in the revision. From the order, it is seen, the materials produced established that the decree of injunction had been violated for the purpose of transporting timber to the property of the 14th judgment debtor. Where a prohibitory decree of injunction continued to CRP.223/07 5 be in force restraining the judgment debtors including the 14th judgment debtor, as the decree had been passed in a representative capacity against the public in the locality, it is seen, that decree was violated for the purpose of facilitating the transportation of timber to the property of the revision petitioner. An opening had been made to the private road of the decree holder, the decree schedule property, flagrantly violating the decree passed in the suit. The evidence let in by the decree holder was found creditworthy by the court to conclude that there was deliberate and wilful violation of the decree. Noticing that the 14th judgment debtor was not a party to the suit but bound by the decree and the decree had been violated for the purpose of transporting timber to his property forming a new sub road from the private road, described in the decree schedule, the court had ordered for undoing that mischief directing the construction of a compound wall to close that newly formed road touching the private road. There is no impropriety or illegality in the order so passed by the court. No court can countenance an act nor even any attempt to flout and tamper the decree passed, that CRP.223/07 6 too, a prohibitory decree of injunction. Any condemner who violated such decree should be dealt with strictly and in accordance with law. What is seen is that the 14th judgment debtor/petitioner, who violated the decree, has been let off with an order to undo the mischief, without any penalty being inflicted. There is no merit in the revision, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp