IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 CRP.No. 175 of 2011() ------------------------------ EP. NO.38/2008 IN OS.172/2006 of MUNSIFF COURT, PUNALUR .................... REVN. PETITIONER(S): JUDGMENT DEBTOR / RESPONDENT ------------------------------------------------------------------------------------- JOSEPH,S/O.MATHAI,THENGUVILA VEEDU, VADACODE MURI, THALAVOOR VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.V.SUNIL KUMAR (PANACHAMOODU) RESPONDENT(S): DECREE HOLDER/ PETITIONER ----------------------------------------------------------------------- GEEVARGHESE DANIEL,PALAKKUZHI PUTHEN VEEDU, VADACODE MURI, THALAVOOR VILLAGE, PATHANAPURAM TALUK, 691 514. R1 BY ADV. SMT.CHINCY GOPAKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.175 of 2011 -------------------------------------- Dated this the 1st day of September, 2011. ORDER Petitioner is the judgment debtor in E.P.No.38 of 2008 in O.S.No.172 of 2006 of the court of learned Munsiff, Punalur. There was an exparte decree against petitioner on 26.09.2007 restraining him from trespassing into the suit property described as 65 cents and belonging to the respondent. Respondent filed E.P.No.38 of 2008 under Rule 32 of Order XXI of the Code of Civil Procedure (for short, “the Code”) alleging that petitioner, on 16.07.2008 trespassed into the property, obstructed tapping of rubber trees, caused damage to the tapping implements and thereby caused loss to the respondent. Petitioner denied the allegations. Respondent – decree holder gave evidence as PW1 and examined a witness as PW2. Executing court found that petitioner has violated the decree and directed that petitioner be detained in the civil prison for a period of two months. He was also asked to pay `1,000/- by way of damages to the respondent. That order is under challenge. 2. It is contended by learned counsel that Rule 32(1) of Order XXI of the Code could be invoked only for enforcing the decree for prohibitory injunction and not to punish for the alleged violation. According to the learned counsel, in the nature of allegations made by the respondent, question of enforcing the decree by detaining petitioner in the civil prison does not arise. CRP No.175/2011 2 Reliance is placed on the decision in Narayani v. Thankappan (1991(2) KLT 704) in particular, the observations in paragraph 9. 3. Learned counsel for respondent supported the order under challenge. 4. The solitary instance of violation was on 16.07.2008. That involved causing obstruction to the respondent tapping rubber trees and damaging the implements for tapping. So far as the alleged violation is concerned, there is the evidence of PWs 1 and 2 and in view of that evidence, I do not find reason to interfere with the finding. 5. But detention of petitioner in the civil prison in the nature of alleged act is not required to enforce the decree. Hence in the light of the decision referred supra, the detention of petitioner is not required. 6. But evidence reveals that petitioner caused damage to the respondent which caused loss to the respondent. Executing court fixed the loss at `1,000/-. It is submitted that petitioner has deposited the said amount in the executing court. I do not find reason to interfere with that part of the order. Resultantly this civil revision is allowed and the order dated January 28, 2011 in E.P.No.38 of 2008 (in O.S.No.172 of 2006) of the court of learned Munsiff, Punalur to the extent it related to the detention of the petitioner in the CRP No.175/2011 3 civil prison is set aside. Respondent is permitted to withdraw the amount deposited by petitioner in the executing court. I.A.No.864 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks