IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 WP(C).No. 12856 of 2008(E) -------------------------- AGAINST THE ORDER IN EA 16 & 17/2008. IN EP.16/2007 of MUNSIFF COURT, PEERUMEDU .................... PETITIONER: --------------------- V.J.JOSEPH, S/O.JOSEPH, VENGAVELIL HOUSE, UPPUTHARA KARA, UPPUTHARA VILLAGE, PEERMADE TALUK. BY ADV. SRI.S.SREEKUMAR SRI.P.PRIJITH RESPONDENTS: --------------------------- 1. A.T.THOMAS, AGED ABOUT 45 YEARS, ERATHU HOUSE, UPPUTHARA KARA, UPPUTHARA VILLAGE, PEERMADE TALUK. 2. PLOUS.J.PUTHIYATH, AGED ABOUT 40, PUTHIYATH HOUSE, UPPUTHARA KARA,UPPUTHARA VILLAGE, PEERMADE TALUK. 3. MANOJ, AGED ABOUT 35 YEARS, S/O.CHANDY, PLATHARA HOUSE, UPPUTHARA KARA, UPPUTHARA VILLAGE, PEERMADE TALUK. BY ADV. SRI.T.A.UNNIKRISHNAN FOR R.1,3 SRI.P.P.BIJU FOR R.1,3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.12856 of 2008 = = = = = = = = = = = = = = Dated this the 15 th day of September, 2008 JUDGMENT Heard both sides. 2. In this writ petition filed under Article 227 of the Constitution of India, the petitioner, who is the decree holder in O.S.No.140 of 2006 on the file of the Munsiff's Court, Peermade, challenges Ext.P9 order dated 28.03.08 passed by the Execution Court dismissing E.A.Nos.16/2008 and 17/2008 filed by the petitioner. 3. The facts leading to the impugned order can be summarised as follows:- O.S.No.140 of 2006 filed by the petitioner before the Munsiff's Court, Peermade was a suit for prohibitory injunction restraining the 3 defendants therein ( respondents herein) from trespassing into the plaint schedule property having an extent of 2 acres comprised in Survey No.338 of Upputhara village and from cutting open a road through the said property and other consequential reliefs. The plaintiff alleged that the defendants with the oblique motive of cutting open a pathway from the W.P.(c)No.12856 of 2008 2 market road to the property of the 1st defendant through the plaint schedule property made attempts to do so necessitating the suit. The suit was filed under Order 1 Rule 8 of the C.P.C in a representative capacity in which the defendants were sued with the permission of the Court for and on behalf of persons having the same interest. The suit was decreed ex-parte on 16.11.06 as evidenced by Ext.P2 and P3 judgment and decree respectively. The said decree has become final. The petitioner/decree holder alleged that on 12.05.2007 the defendants and their henchmen criminally trespassed into the plaint schedule property in gross violation of Ext.P3 decree and cut open a pathway after destroying the boundary and after cutting and removing the trees thereon. The petitioner thereupon filed E.P.No.16 of 2007 for executing Ext.P3 decree. In execution proceedings the petitioner took out a Commission. The Advocate Commissioner deputed by the Execution Court conducted local inspection on 5.7.07 and submitted a report. Ext.P5 is the true copy of the report submitted by the Commissioner. The Commissioner reported that the existing southern boundary of the plaint schedule property was W.P.(c)No.12856 of 2008 3 demolished and a pathway having a width of 26-29 feet and a length of 230 feet was found and steps were being taken to tar the road so formed. It was under these circumstances that the petitioner filed E.A.No.16 of 2008 for a direction to restore the property to its original condition. Ext.P6 is the said application. The petitioner also filed E.A.No.17 of 2008 (Ext.P7) for a direction to stop the tarring operation on the strip of land which was allegedly encroached upon by the defendants. The court below, relying upon the report of the Commissioner to the effect that a plaque was seen installed on the disputed portion to the effect that it was being constructed by the Upputhara Grama Panchayat and funded by the local MLA Smt.E.S.Bijimol, dismissed the applications holding that the decree passed in the case cannot be binding on the Upputhara Grama Panchayat which is a total stranger to the decree. 4. A perusal of the sketch produced by the Advocate Commissioner which is produced as Ext.P5(2) prima facie shows that the disputed strip of land on which the road has been cut open is lying towards the southern extremity of the plaint schedule property. The main objection raised by the defendants W.P.(c)No.12856 of 2008 4 to the above E.A.s was that the road was not constructed by them in violation of the decree but was constructed by the Upputhara Grama Panchayat which is not a party to the decree. The court below also noted the stand taken by the defendants/judgment debtors that they have no objection in closing the road or cutting it open since that will not, in any way, affect them. A perusal of Ext.P5(2) sketch submitted by the Advocate Commissioner shows that whoever be the persons responsible for the formation of the road along the southern extremity of the plaint schedule property the beneficiary of the same is none other than the 1st defendant who gets a direct access to the market road from his properties which are lying to the south and west of plaint schedule property. It is also pertinent to note that the Upputhara Grama Panchayat did not object to the application filed by the decree holder and there was no representation from the Panchayat before the Advocate Commissioner who visited the disputed strip of land. If, as a matter of fact, it was the Upputhara Grama Panchayat which was responsible for the formation of the road, then there was no necessity for the 2 defendants to contest E.A.Nos.16 and 17 of W.P.(c)No.12856 of 2008 5 2008. Moreover, it will have to be seen whether the Upputhara Grama Panchayat which was allegedly constructing the road was doing so for the benefit of any of the defendants in which case also the said Panchayat may be bound by the decree as a person having some interest as the defendants within the meaning of Order 1 Rule 8(1) and Order I Rule 8(6) of C.P.C. The court below has not examined this aspect of the matter. Hence, Ext.P9 impugned order is set aside and the matter is remitted to the court below for disposal of E.A.Nos.16 and 17 of 2008. The writ petition is disposed of as above. Dated this the 15 th day of September, 2008. V. RAMKUMAR, JUDGE sj