IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 OP(C).No. 487 of 2010(O) ------------------------ OS.313/1990 of MUNSIFF COURT, PUNALUR .................... PETITIONERS: ------------------------------- 1. INDIRA, VEENA BHAVAN, KARAKKADU, PLACHERY.P.O., VALAKKOD VILLAGE, PATHANAPURAM TALUK. 2. SAJEEV, VEENA BHAVAN, KARAKKADU, PLACHERY.P.O., VALAKKOD VILLAGE, PATHANAPURAM TALUK. 3. RAJEEV, VEENA BHAVAN, KARAKKADU, PLACHERY.P.O., VALAKKODE VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENTS: --------------- 1. SUNDARESAN, PALOTTUCHARUVILA PUTHENVEEDU,KALAYANADU VILLAGE, VALAKKODE-691331. 2. JAGADAMMA, PALOTTUCHARUVILA PUTHENVEEDU,KALAYANADU VILLAGE, VALAKKODE-691331. 3. SUSEELA, PALOTTUCHARUVILA PUTHENVEEDU,KALAYANADU VILLAGE, VALAKKODE-691331. 4. SUBHASHINI, PALOTTUCHARUVILA PUTHENVEEDU,KALAYANADU VILLAGE, VALAKKODE-691331. 5. SAKUNTHALA, PALOTTUCHARUVILA PUTHENVEEDU,KALAYANADU VILLAGE, VALAKKODE-691331. 6. SOMARAJAN, PALOTTUCHARUVILA PUTHENVEEDU,KALAYANADU VILLAGE, VALAKKODE-691331. 7. SASIDHARAN, PALOTTUCHARUVILA PUTHENVEEDU,KALAYANADU VILLAGE, VALAKKODE-691331. 8. BINDHU, PALOTTUCHARUVILA PUTHENVEEDU,KALAYANADU VILLAGE, VALAKKODE-691331. ADV. SRI.ANCHAL C.VIJAYAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 487 of 2010 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : JUDGMENT PASSED BY THE DISTRICT COURT, KOLLAM IN A.S.No.360/06 EXHIBIT P2 : E A NO.180/2009 UNDER ORDER 39 RULE 2A EXHIBIT P3 : OBJECTION FILED BY THE PETITIONERS DTD 19-03-2010 EXHIBIT P4 : ORDER IN E.A.180/2009 IN E.P.59/2009 IN O.S.313/1990 DTD 27.09.2010 RESPONDENTS' EXHIBITS: EXHIBIT R1(a): JUDGMENT PASSED BY THE MUNSIFF COURT, PUNALUR IN O.S.313/1990 DTD 30.09.1997 EXHIBIT R1(b): E.P.No.59/2009 FILED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, PUNALUR EXHIBIT R1(c): PETITION SUBMITTED BY RESPONDENTS 1 AND 2 BEFORE THE CIRCLE INSPECTOR OF POLICE PUNALUR DTD 14.10.2010 EXHIBIT R1(d): AFFIDAVIT AND PETITON FILED BY THE RESPONDENTS IN the ORIGINAL PETITION BEFORE THE MUNSIFF COURT, PUNALUR IN E.P.59/2009 IN O.S.313/1990 THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.487 of 2010 --------------------------------------- Dated this 24th day of November, 2010 JUDGMENT Judgment debtor in E.P.No.59 of 2009 in O.S.No.313 of 1990 of the court of learned Munsiff, Punalur is the petitioner before me challenging Ext.P4, order dated September 27, 2010 on E.A.No.180 of 2009. By the impugned order petitioners are directed to show cause why they shall not be proceeded against for wilful violation of the decree. It is also directed that properties of the petitioners shall remain in attachment for a period of six months and in the meantime if violation still persisted, respondents are allowed to exercise their right of possession over the decree schedule property with police protection. It is contended by learned counsel for petitioner that E.A.No.180 of 2009 itself was not maintainable since it was filed under Rule 2A of Order XXXIX of the Code of Civil Procedure (for short, “the Code”) at a time when respondents had filed E.P.No.59 of 2009 under Rule 32 of Order XXI of the Code alleging violation of the decree on the counter claim. It is also contended by learned counsel that petitioners had preferred their objection to E.P.No.59 of 2009 disputing identity of the counter O.P(C).No.487 of 2010 : 2 : claim decree schedule property. In such a situation without proper identification of the property executing court was not correct in passing Ext.P4, order. At any rate, the order as passed is not in accordance with Rule 32 of Order XXI of the Code, it is contended. Learned counsel for respondents contended that no question of identity of property arises since the trial court which granted decree on the counter claim and the appellate court which confirmed that decree came to the definite conclusion that petitioners have no right over the counter claim schedule property which is separately demarcated from the property of petitioners. According to learned counsel, wrong labelling of application under Rule 2A of Order XXXIX of the Code could not and need not prevent executing court from granting relief to the respondents. Learned counsel contends that even if earlier part of the impugned order cannot be sustained, there is no reason why this court should be interfere with the order passed by executing court granting police protection for enforcement of the decree in favour of respondents which remains in tact. 2. Before going into the controversy it is necessary to refer to the contentions raised by the parties on the trial side. According to the petitioners they got the suit property as per O.P(C).No.487 of 2010 : 3 : Ext.A1, (marked on the trial side) partition deed dated 25-03-1988. Respondents contended that since even before Ext.A1 petitioner's father Nanoo had disposed of entire property belonging to him, he had no property left with him and that document was created fraudulently to defeat the right of respondents over the counter claim schedule property. Though it is not necessary for me to go into the question regarding identity of the property in this proceeding, it is pertinent to note from the judgment in A.S.No.360 of 2006 (filed by the petitioners against the decree on the counter claim) that learned District Judge in paragraph 13 made reference to Ext.A3, report marked on the trial side to say that there is demarcating boundary between property admittedly belonging to the petitioners and the counter claim schedule property. For the disposal of this proceeding, that reference is sufficient. But, if there is any further dispute for petitioners regarding identity of the property that is a matter which they can urge before the executing court if they are otherwise entitled to that course. I leave that matter there. 3. It is not disputed that respondents filed E.P.No.59 of 2009 under Rule 32 of Order XXI of the Code alleging that there was violation of the decree on the counter claim. In that O.P(C).No.487 of 2010 : 4 : execution petition respondents filed E.A.No.180 of 2009 labelling it as one under Rule 2A of Order XXXIX of the Code where relief prayed for is that the decree may be executed and for the purpose of its enforcement and to proper enjoyment of property by the respondents assistance of the police may be ordered. In the nature of the relief prayed for, though in E.A.No.180 of 2009 (Ext.P2), it need not be read as a petition for prosecution of petitioners under Rule 2A of Order XXXIX of the Code nor can such an application be preferred in the executing court. Respondents already initiated action under Rule 32 of Order XXI of the Code. Proceedings under Rule 2A of Order XXXIX of the Code has to be taken on the trial side when there is violation of order of temporary injunction. In the circumstances E.A.No.180 of 2009 need only be treated as an application for enforcement of the decree with police assistance. 4. It is seen that executing court has conducted enquiry on E.A.No.180 of 2009 by examining witnesses of respondents and came to the conclusion that there is a violation of the decree for which property of petitioners is ordered to be attached and in the meantime they are directed to show cause why they shall not be proceeded against for wilful violation of the decree. I have O.P(C).No.487 of 2010 : 5 : gone through the impugned order I am persuaded to think that executing court was not correct in passing such an order on E.A.No.180 of 2009. Enquiry regarding alleged violation of the decree ought to have been made on the execution petition filed under Rule 32 of Order XXI of the code. Hence, that part of Ext.P4, order issuing show cause notice to the petitioners and attaching the property cannot stand and is liable to be set aside. But remaining part of the order granting police protection for respondents for enforcement of the decree does not require interference in this proceeding. Evidence recorded on the alleged violation of the decree shall be treated as evidence recorded in support of the alleged violation in E.P.No.59 of 2009. I also make it clear that it will be open to the parties to adduce their evidence, if any in support of their contentions. Resultantly this petition is allowed in the following lines: (i) Ext.P4, order to the extent it related to issuing show cause notice to the petitioners asking them to show cause and directing attachment of property of petitioners is set aside. (ii) Evidence recorded by the executing court on E.A.No.180 of 2009 shall be treated as evidence recorded in support of the alleged violation in E.P.No.59 of 2009. I make it clear O.P(C).No.487 of 2010 : 6 : that it will be open to the petitioners to adduce evidence regarding alleged violation of the decree in E.P.No.59 of 2009. This order will not prevent petitioners from proceeding with their contentions in E.P.No.59 of 2009. (iii) It is made clear that, that part of the order on E.A.No.180 of 2009 granting police assistance for enforcement of the decree on the counter claim would stand until otherwise decided by the executing court. (THOMAS P JOSEPH, JUDGE) Sbna/-