IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 CRP.No. 551 of 2010() --------------------- OS.367/1988 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER/2ND JUDGMENT DEBTOR/DEFENDANT: -------------------------------------------------- SAJAN P.VARGHESE, AGED 57 YEARS, S/O.THOMAS VARGHESE, PARAYIL HOUSE, PUTTUMANNUR KARA, PUTHENCURZ VILLAGE, KUNNATHUNADU TALUK, PUTHENCURZ.P.O., PIN-682308. BY ADV. SRI.B.JAYASANKAR RESPONDENT/DECREE HOLDER/PLAINTIFF: ------------------------------------- 1. S.NARAYANA PILLAI, AGED 63 YEARS, S/O.SREEDHARAN PILLAI, MKKAYIL HOUSE, Q.NO.534/10, F.A.C.T(C.D), AMBALAMEDU, NOW RESIDING AT ASWATHI HOUSE, AMBALAMEDU.P.O., PIN-682 303. 2. THOMAS VARGHESE (DIED), PARAYIL HOUSE, PUTTUMANNUR KARA, PUTHENCURZ VILLAGE, KUNNATHUNADU TALUK, PIN-682 308. ADV. SRI.V.RAJENDRAN PERUMBAVOOR FOR CAVEATOR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.551 of 2010 --------------------------------------- Dated this 06th day of December, 2010 ORDER Petitioner/judgment debtor on an allegation of wilful violation of the decree stand punished with detention in the civil prison for a period of three months. The executing court also directed police assistance for enforcement of the decree for prohibitory injunction vide the impugned order. The order passed by learned Principal Munsiff, Perumbavoor in E.P.No.17 of 2009 in O.S.No.367 of 1988 is under challenge. 2. O.S.No.367 of 1988 is a suit filed by the respondent against petitioner and his father for a decree for prohibitory injunction against petitioner and his father interfering with possession and enjoyment of respondent over the suit property. Respondent claimed right, title and possession of the suit property as per patta No.34/1978 issued by the special Tahsildar concerned. Petitioner and his father claimed right, title and possession of 67 cents in the same survey based on another patta. In the trial court, petitioner and his father contended that one acre in survey 550/1-4 described in the plaint schedule takes in the said 67 cents. Trial court was not impressed by the C.R.P.No.551 of 2010 : 2 : evidence produced by respondent and non-suited him. Respondent took up the matter in appeal (A.S.No.132 of 1991). Appellate court found from the evidence that suit property is properly identified, property claimed by petitioner and his father as per patta referred to in the written statement did not concern the suit property, that respondent is in possession and enjoyment of the suit property and granted a decree as prayed for. This court in second appeal at the instance of petitioner refused to interfere with the judgment and decree of the appellate court. The decree thus became final. In the meantime, petitioners' father expired. Respondent filed E.P.No.17 of 2009 alleging wilful violation of the decree at the instance of petitioner. Respondent alleged that on 26-06-2008 petitioner obstructed his entering the suit property and doing work there. Respondent also filed E.A.No.35 of 2010 for a direction to the local police to enforce the decree. Execution petition and application were opposed by petitioner. He contended that allegation regarding violation of decree on 26-06-2008 is not true and that the suit property is not properly identified. In the executing court, respondent gave evidence as PW1 while petitioner was examined as DW1. Executing court found that petitioner wilfully violated C.R.P.No.551 of 2010 : 3 : the decree by interfering with possession of respondent on 26-06- 2008. There was an order for detention of petitioner in the civil prison for a period of three months as aforesaid. Direction was also issued to the local police to enforce the decree. It is contended by learned counsel for petitioner that there is no proper identification of the suit property without which petitioner cannot be held liable for alleged violation. It is also contended that there is no reliable evidence to prove alleged violation and at any rate there are no proper averments in the execution petition regarding wilful violation. Reliance is placed on the decisions in Repayi Jose Vs. Chacko Lonappan (1959 KHC 50), Raman Nambissan vs. Damodaran Nambissan (1995 KHC 187) and Abraham Vs. Chellan and Ors. (2009 KHC 1335). Learned counsel for respondent contended that in the light of the finding of first appellate court which this court refused to interfere in second appeal and the clear description in the plaint and decree schedule, no question of dispute regarding identity could arise in execution. Learned counsel also has invited my attention to the copy of plaint in O.S.No.154 of 2008 (Ext.R1(e)) filed by the petitioner for declaration of title over the property he claims as per patta relied on by him and evidence of petitioner as DW1. C.R.P.No.551 of 2010 : 4 : 3. Rule 32 of Order XXI of the Code of Civil Procedure (for short, “the Code”) provides for execution of a decree for injunction and states that when judgment debtor has wilfully failed to obey the decree, it can be enforced in the case of prohibitory injunction by detention in the civil prison or by attachment of his property or by both. Decisions on the point say that it is not every violation that has to be proceeded under Rule 32 but, wilful violation of the decree which is liable to be proceeded against. It is the settled position of law that decree holder shall either in the execution petition and if not, by a separate affidavit state details of alleged violation of the decree and how and when it was violated. So far as pleadings in the case on hand is concerned, it is stated in E.P.No.17 of 2009 that the court had granted a decree in favour of respondent to protect his possession and enjoyment of the property, petitioner was restrained from interfering with that possession and enjoyment but, with intend to violate the decree publicly, on 26-06-2008 petitioner obstructed respondent (who is residing about 4Km away from the suit property) entering the decree schedule property. That, I think is sufficient averment to attract Rule 32 of Order XXI of the Code. C.R.P.No.551 of 2010 : 5 : 4. Now as regards the identification of property canvassed by petitioner, in the written statement filed by petitioner on the trial side claim was for 67cents covered by patta as forming part of the suit property which is described as 1 acre in survey No.550/1-4. Though respondent had filed an application for appointment of an Advocate Commission to measure the property, trial court thought that it is not necessary to measure the property with reference to title since the suit is merely for decree for prohibitory injunction based on possession and that request was disallowed. Petitioner produced Exts.A11, A12 and A13, certified copy of reports and plan prepared by PW3 (examined in the trial side), Advocate Commissioner in O.S.No.314 of 1982 filed by the respondent against one Thankamma. Ext.C1, marked on the trial side is a report prepared by the Advocate Commissioner in the present suit. In Ext.C1, Advocate Commissioner stated the he could not find visible boundaries on the south and east of suit property and that visible boundaries were seen only on the west of suit property and western portion of northern boundary of the suit property. Trial court was not impressed by that evidence and dismissed the suit for lack of identification. Appellate court referring to C.R.P.No.551 of 2010 : 6 : Exts.A11 to A13 and evidence of PW3, Advocate Commissioner found that there was proper identification of the property and that Ext.A13, plan was prepared after proper measurement of the property with reference to the patta in favour of respondent as well as the plan accompanying it. It is on that finding decree was granted in favour of respondent in respect of suit and decree schedule property. Now, it is idle for petitioner to contend that there was no proper identification of the suit property. 5. Now the next question is whether there was violation of the decree schedule property. I referred to the contention raised by petitioner on the trial side that 67 cents claimed by him formed part of the suit property and the finding of first appellate court that the property claimed by petitioner and suit property are different. That finding is now relied upon by learned counsel for petitioner to contend that in the absence of proper identification petitioner could not have been proceeded against for alleged violation of the decree. Argument is apparently appreciable but, cannot stand legal scrutiny. The reason is that Ext.R1(e), copy of the plaint in O.S.No.154 of 2008 filed by petitioner for declaration of title and possession of 67 cents does not show that the suit property adjoins property referred to in C.R.P.No.551 of 2010 : 7 : Ext.R1(e). Though learned counsel for petitioner has invited my attention to Ext.R1(e) where western boundary is stated to be property of Thankamma against whom respondent has obtained ex parte decree in O.S.No.314 of 1982 (in which case Exts.A11 to A13 were obtained) that boundary description cannot help petitioner to say that decree schedule property is bounded by property referred to in Ext.R1(e) on any side. In view of that also, it is idle for petitioner to contend that there is no proper identification of decree schedule property. 6. It is also relevant to refer to the proof affidavit filed by petitioner in the executing court (Ext.R1(f)). There, what is stated in paragraph 3 is that case concerned property which respondent claimed to be his and petitioner claimed to be his. In paragraph 5 it is asserted that respondent never had possession of suit property which right from the beginning was in the possession and enjoyment of the petitioner and others. Thus, going by the said statements in the proof affidavit it is clear that petitioner is claiming right and possession over decree schedule property. That, petitioner had understood that the disputed property is the decree schedule property is clear as he stated (extracted by the executing court in paragraph 9 of the order) C.R.P.No.551 of 2010 : 8 : that he has objection to the respondent entering decree schedule property and that he will again obstruct if respondent tried to enter the said property. It cannot be heard to say that petitioner has not understood what exactly is the decree schedule property. The decision in Abraham Vs. Chellan and Ors. (supra) relied on by learned counsel for petitioner was a case where allegation was regarding violation of ex parte decree and there happened to be no proper identification of the property. In that view of the matter it was held that before proceeding to punish judgment debtor for violation of the decree it is imperative that identity of the property must be established with precision. Raman Nambissan vs. Damodaran Nambissan (supra) related to a decree for mandatory injunction unlike in the present case where it is prohibitory in nature. 7. Yet another contention advanced by learned counsel for petitioner is lack of evidence regarding alleged violation of the decree. It is contended that there is only the interested version of respondent as PW1. But, assertion made by petitioner that he will again obstruct respondent from entering the said property if the latter made an attempt indicated trend of petitioner and, his mood so far as obeyance of the decree is C.R.P.No.551 of 2010 : 9 : concerned. In such a situation when respondent has gave evidence that he was obstructed by petitioner on 26-06-2008 I find no reason to disbelieve. I am also not inclined to think that the finding entered by the executing court regarding violation of the decree is either without any evidence or, on a perverse appreciation of the evidence so that this court is required to interfere in the matter. 8. Learned counsel for petitioner has also raised a contention that at any rate punishment awarded is excessive. Executing court directed detention of petitioner for a period of three months. Having regard to the facts and circumstances of the case I am inclined to think that to enforce the decree and particularly when the executing court has directed the local police to enforce it detention for such long period is not required instead, detention in the civil court until rising of the court is sufficient. 9. So far as challenge to that part of the order directing local police to enforce the decree is concerned though learned counsel for petitioner argued that it may not be left to the police to identify the suit property and enforce it, I find myself unable to give my assent to that argument. I do not find reason to interfere C.R.P.No.551 of 2010 : 10 : with that part of the impugned order. Resultantly this petition is allowed in part to the extent that detention ordered by the executing court on the petitioner is modified as detention in the civil court till rising of the court. Petitioner shall appear in the executing court for the said purpose on 07-01-2011 at 11 a.m to undergo detention in the civil court till rising of the court (5 p.m). (THOMAS P JOSEPH, JUDGE) Sbna/-