IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 4810 of 2008(V) ------------------------- AGAINST THE ORDER DATED 07/02/2006 IN EP 74/03 IN E.A.NO.3/08 IN OS.57/2002 of MUNSIFF COURT, MANJERI .................... PETITIONER: ------------ KUNHIMOHAMMED, S/O.MANTHONI ABU KURUMBALANGODE (PO), KURUMBALANGODE AMSOM MUNDAMPADAM DESAM, NILAMBUR TALUK MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENT: ------------- FATHIMABI, W/O.POTTAYIL MOIDEEN CHANDAKUNNU - POST, NILAMBUR AMSOM, DESOM & TALUK, MALAPPURAM DISTRICT. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1:- Copy of Order in E.P.74/2003 dated 7-2-2006 Munsiff Court, Manjeri. Ext.P2:- True copy of Order in E.P.74/2003 dated 27-11-2007 Munsiff Court, Manjeri. Ext.P3:- Copy of the Order in E.A.3/2008 dated 18-01-2008 Munsiff Court, Manjeri. /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 4810 OF 2008 =========================== Dated this the 12th day of June, 2008 JUDGMENT Petitioner is a judgment debtor and respondent the decree holder in O.S.57/2002 on the file of Munsiff Court, Manjeri. A decree for permanent prohibitory injunction was granted against the petitioner and in favour of the respondent. Though it was an ex parte decree, petitioner did not challenge the same and the decree has become final. E.P.74/2003 was filed by the respondent for execution of the decree as provided under Rule 32 of Order XX1 of Code of Civil Procedure contending that subsequent to the date of the decree on 11.12.2002, petitioner trespassed into the property and attempted to construct a basement. Petitioner resisted the execution petition contending that the decree was ex parte and the disputed portion does not form part of the decree schedule property and instead is portion of the property got assigned by W.P.(C)4810/2008 2 the petitioner from Baby Thomas as per document No.3699/2001 of S.R.O. Edakkara. It was also contended that O.S.136/2002 on the file of Sub Court is pending in respect of the said property and respondent is not entitled to claim any right in that property or execute the decree in respect of that property. Execution petition was originally dismissed. It was challenged before this court by respondent in C.R.P.391/2006. C.R.P was disposed as per order dated 8.1.2007 finding that executing court did not properly consider the crucial question whether the disputed property forms decree schedule property in O.S.57/2002 or plaint schedule property in O.S.136/2002. The order of the Munsiff Court was set aside and execution petition was remanded with a direction to dispose it afresh in the light of the observations. Learned Munsiff thereafter under Ext.P2 order dated 27.11.2007 found that the disputed property does not form part of the plaint schedule property in O.S.136/2002 and is part of decree schedule W.P.(C)4810/2008 3 property in O.S.57/2002 and granted an order directing petitioner herein to remove tiles, timber and stones kept in the property and to restore possession of the property after demolishing the shed and the basement to respondent. Ext.P2 order was passed after the counsel appearing for respondent had reported no instruction. Petitioner filed E.A.No.3/2008 an application to set aside the order under Rule 106 of Order XXI of Code of Civil Procedure. Case of the petitioner was that he could not appear and contest the case when the order was passed on 27.11.2007 as he was laid up due to illness and therefore the order is to be set aside. Learned Munsiff under Ext.P3 order found that E.P.74/2003 was posted for enquiry as finally to 3.11.2007 and after the counsel reported no instruction, it was posted to 21.11.2007 and petitioner did not take any steps to set aside the ex parte order and on 21.11.2007 it was again posted to 27.11.2007 on which day the order was passed. Learned Munsiff on W.P.(C)4810/2008 4 the materials was not satisfied on the genuineness of the contentions raised by petitioner for his absence and dismissed the application. This petition is filed under Article 227 of the Constitution of India challenging Exts.P2 and P3 order. 2. Learned counsel appearing for petitioner and respondent were heard. 3. The argument of the learned counsel appearing for petitioner is that Ext.P2 order was passed without hearing the petitioner and therefore an opportunity should have been granted by the executing court. Learned counsel also argued that eventhough it was specifically contended by the petitioner that the property where the structure is constructed, which is attempted to be demolished, forms part of the plaint schedule property in O.S.136/2002 and not the decree schedule property in O.S.57/2002, learned Munsiff did not consider it in the proper perspective and therefore Ext.P3 order is not sustainable. It was argued that in W.P.(C)4810/2008 5 any case an opportunity should have been granted to dispose the dispute after hearing the petitioner and as Ext.P3 is an ex parte order, learned Munsiff should have set aside that order and passed fresh order after hearing the petitioner. Learned counsel for respondent pointed out that this court remanded the execution petition with a specific direction to find out whether the disputed property forms part of the decree schedule property in O.S.57/2002 or the plaint schedule property in O.S.136/2002 and on the evidence executing court rightly found that it forms part of the decree schedule property in O.S.57/2002 and in such circumstance, petition is only to be dismissed. 4. On hearing the learned counsel, I do not find any reason to interfere with Ext.P2 and P3 orders. Ext.P3 order shows that petitioner was given more than sufficient opportunity to prove his objections in the execution petition. The order shows that even if the counsel reported no instruction, execution petition was not disposed W.P.(C)4810/2008 6 on that day and was adjourned further so as to enable the petitioner to appear and contest the case and he did not avail that opportunity. Learned Munsiff also found that sufficient reason was not shown for his absence and in such circumstance, there was no necessity to grant an opportunity after setting aside Ext.P2 order. Ext.P2 order shows that question whether the disputed property forms part of the decree schedule property was properly considered by the executing court. It is after analysing the evidence in the light of boundaries of the property in the plaint schedule property and the decree schedule property, executing court found that both the properties are different. In such circumstance, I do not find any illegality or irregularity warranting interference. Writ Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006