IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 WP(C).No. 26967 of 2009(O) ----------------------------------- AGAINST THE ORDER DATED 13/07/ 2009 IN EP 59/08 IN OS.1746/1994 of I ADDL.M.C.,TRIVANDRUM ............................. PETITIONER(S): --------------------- 1. DAINA PEREIRA WRONGLY SHOWN AS SAINA PEREIRA, S/O. JULIYAN, PUTHENTHOPPPU PUTHUVAL PURAYIDAM, MENAMKULAM. 2. BROKARDS PEREIRA @ RAJU, S/O. JULIYAN, PUTHUVAL PURAYIDAM PUTHENTHOPPU, MENAMKULAM. 3. METTILA BELINGTON, D/O. JULIYAN, SANTHI COTTAGE, MENAMKULAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): --------------- JOHNY PEREIRA, PUTHUVAL PURAYIDOM, PUTHEN THOP, MENAMKULAM, THIRUVANANTHAPURAM. R1 BY ADV. MR.P.A.AHAMMED R1 BY MR.THOUFEEK AHAMED R1 BY MR.LIJU.V.STEPHEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26967 of 2009(O) APPENDIX PETITIONERS' EXHIBITS P1 - COPY OF THE PLAINT IN O.S.1746/1994 OF THE MUNSIFF'S COURT, TRIVANDRUM. P2 - COPY OF THE JUDGMENT IN O.S.1746/1994 OF THE ADDL.MUNSFF OF RIVANDRUM. P3 - COPY OF THE E.P.59/08 IN O.S. 1746/1994. P4 - COPY OF THE ORDER DATED 13..7.2009 IN E.P.59/08 IN O.S.1746/1994 OF THE ADDL. MUNSIFF, THIRUVANANTHAPURAM. // TRUE COPY // P.A. TO JUDGE. S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.26967 OF 2009 -------------------------------- Dated this the 25th day of November 2009 ---------------------------------------------------------- JUDGMENT Petitioners are judgment debtors 4, 9 and 10 in E.P No.59 of 2008 in O.S No.1746 of 1994 on the file of the 1st Additional Munsiff Court, Thiruvananthapuram. The respondent is the decree holder. Decree executed in the above execution petition is one passed in a suit for perpetual prohibitory injunction. Ext.P2 is the copy of the judgment rendered in the suit. A decree was granted in favour of the first respondent/plaintiff restraining the defendant from creating any new pathway through the plaint scheduled property and from interfering with the construction of the compound wall around the plaint scheduled property. That decree was sought to be executed by the respondent/decree holder contending that the judgment debtors are disobeying the decree from putting up the compound wall. The judgment debtors filed objections resisting the petition in which the excutability of the decree for putting up of the compound wall as desired by the decree W.P.(C).No.26967 OF 2009 Page numbers holder was also questioned. The learned Munsiff after hearing both sides passed an order that the decree holder is entitled to put up a compound wall in the boundary of the plaint scheduled property through the process of the court. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. It appears, the learned Munsiff has not taken due note of the true ambit and scope of Order 21 Rule 32 of the Code of Civil Procedure which is applicable in the enforcing of a decree passed in a suit for injunction. That rule applies in the case of decree passed for restitution of conjugal rights, specific performance and injunction. In the case of enforceability of a decree of injunction under the rule, a primary finding has to be entered into by the court on the materials placed whether there was disobedience and wilful failure to obey the decree by the person against whom the decree was passed. Once that satisfaction is reached, then the court can proceed for enforcing the decree by attachment or arrest, or of both, of the contemnor, even ordering his W.P.(C).No.26967 OF 2009 Page numbers detention in the civil prison. If the disobedience continues for a period of six months after an order of attachment had been passed, then the property attached can also be brought to sale. The amended provision under sub Rule (5) of Rule 32 of Order 21 empowers the court to pass such other orders which may be required to be done to enforce the decree of injunction. But the enforceability of the decree even in the case of disobedience by the person proceeded against must be in relation to the decree of injunction granted and nothing more. In the decree passed in the present suit, it is seen that two injunctions are passed against the judgment debtors. A prohibitory order is passed not to cut open a pathway through the plaint property. Secondly, they are restrained from causing any obstruction to the decree holder from putting up a compound wall in the plaint property. The decree does not provide for or enable the plaintiff to put up a compound wall through the intervention of the court whether or not the judgment debtors caused obstruction to the plaintiff in putting up the boundary. No relief was claimed nor granted by the court in fixing the boundary or putting up of the boundary wall of W.P.(C).No.26967 OF 2009 Page numbers plaint property. For the reason that a decree of injunction had been passed against the defendants restraining them from causing any obstruction to the plaintiff in putting up a boundary wall, it is not open to the plaintiff to canvass a larger relief for putting up the boundary wall, which has not been granted, through the intervention of the court. Of course, if the plaintiff is otherwise entitled to put up a boundary wall of his property and there is obstruction by the defendants in doing so under the decree, it is open to him to proceed against the judgment debtors, but not for putting up of a boundary wall of the plaint property through court. The order of the court below cannot be sustained and is liable to be set aside. Setting aside Ext.P4 order, court below is directed to examine the matter afresh and dispose it, taking note of the observations made above and in accordance with law. Writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// vdv P.A TO JUDGE