IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 10850 of 2010(O) -------------------------- AGAINST THE ORDER DATED 31/01/2003 IN EP 292/2009,EA 33/2010 IN OS.165/1994 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONERS: --------------- 1. THANKA, W/O.LATE CHELLAN, AGED 65 YEARS, AKAMALAVARAM, KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD TALUK & DISTRICT. 2. MANI, S/O.CHELLAN, AGED 40 YEARS, AKAMALAVARAM, KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD TALUK & DISTRICT. 3. THANKAPPAN, S/O.CHELLAN, AGED 38 YEARS, AKAMALAVARAM, KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD TALUK & DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT: --------------- BALAN, S/O.KARUPPAN, AKAMALAVARAM, KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD TALUK & DISTRICT. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.10850 of 2010 --------------------------------------- Dated this 19th day of May, 2010 JUDGMENT Ext.P7, order passed by learned Principal Munsiff, Palakkad on E.A.No.33 of 2010 in E.P.No.292 of 2009 in O.S.No.165 of 1994 is under challenge. Respondent obtained a decree for prohibitory injunction against petitioners trespassing into the suit property, interfering with the peaceful possession and enjoyment of the respondent in the said property and against the commission of waste. That decree has become final. Respondent later filed E.P.No.15 of 2008 alleging that his attempt to put up a fence on the boundary of the decree schedule property was obstructed by the petitioners. The executing court appointed Amin of that court to put up a fence on the boundary of decree schedule property. He filed Ext.P4, report stating that the property has been fenced. It would appear that on the basis of Ext.P4 report the executing court recorded full satisfaction but, respondent contended that there was no proper fencing of the property but, only certain poles were installed and the fence could not be drawn. Respondent filed Ext.P2, execution petition No.292 of 2009 stating that Ext.P1, decree enabled him to peacefully enjoy the decree schedule W.P.C.No.10850 of 2010 : 2 : property but, petitioners are causing inconvenience to him and not permitting him to put up fence necessary for peaceful enjoyment of the property. That execution petition was objected by the petitioners as per Ext.P3 contending that the execution petition is not maintainable as the property has already been fenced in the presence of the Amin and that at any rate, E.P.No.292 of 2009 is not maintainable in so far as there is no averment in the execution petition that there was any willful disobedience of the decree at the instance of petitioner. Respondent then filed E.A.No.33 of 2010 to depute Amin for the purpose of fencing the property. That application was also opposed by the petitioners for reasons aforesaid. The executing court by Ext.P7 order allowed E.A.No.33 of 2010 and deputed the Amin to fence the decree schedule property under the supervision of Advocate Commissioner, Smt. Ajitha. The executing court also directed that the advocate commissioner can avail the assistance of the Village Officer and the SHO concerned to execute the warrant. Learned counsel for petitioners would contend that E.P.No.292 of 2009 is not maintainable in so far as required under Order 21 Rule 32 of the Code of Criminal Procedure there is not even whisper in the execution petition that the decree was willfully disobeyed by the petitioner. Learned counsel has placed reliance on the decision in Raman Nambissan Vs. Damodaran Nambissan & Ors. (1995(1) W.P.C.No.10850 of 2010 : 3 : KLJ 566). Per contra, it is contended by learned counsel for respondent that when there is disturbance to the possession of respondent protected by Ext.P1, decree it is well within the power of respondent to seek assistance of the executing court to fence the property so that he can enjoy the fruits of the decree. Learned counsel has placed reliance in Dasan Nadar Surendran Vs. Parameswaran Pilla (2007 (4) KLT 563). 2. No doubt, when a decree for injunction is being executed under Order 21 Rule 32 of the Code of Civil Procedure and detention of judgment debtor is requested for, there must be averment and evidence that the decree has been willfully disobeyed. That is what this court has held in Raman Nambissan Vs. Damodaran Nambissan & Ors.(supra). Now the prayer in E.P.No.292 of 2009 is to protect the decree schedule property by fencing the same so that respondent can enjoy the fruits of the decree. That is part of the function of executing court as held in Dasan Nadar Surendran Vs. Parameswaran Pilla (supra). Hence I am not impressed by the contention of learned counsel for petitioner that E.P.No.292 of 2009 is not maintainable. That apart, even in column 12 of E.P.No.292 of 2009 (Ext.P2) there are sufficient averments to show that the peaceful enjoyment of the decree schedule property by the respondent has been interfered with by the petitioners in that the decree guaranteed his peaceful W.P.C.No.10850 of 2010 : 4 : possession and enjoyment of the said property but petitioners are not permitting him to put up the fence which in effect is interference with peaceful enjoyment of the decree schedule property. 3. The next contention urged by learned counsel for petitioner is that under the guise of fencing the property attempt of respondent is to trespass into the property belonging to him. Learned counsel for petitioner requested that in case Ext.P7 order is sustained, the Amin may be directed to identify the decree schedule property. 4. True, executing court also can direct identification of the property in respect of which the decree is granted. But in this case, a further identification of the property is not warranted since the property is identified on the trial side and the advocate commissioner appointed at that time has submitted Ext.C2(a) plan based on which trial court has granted decree in favour of respondent. That plan as approved by the trial court has to stand. What is required is that the fencing has to be done on boundary of decree schedule property shown in Ext.C2(a) plan. That has been ensured by the executing court by directing the Amin to fence property under the supervision of the advocate commissioner (Smt.Ajitha). There is no reason to think that Amin under the supervision of the advocate commissioner would transgress beyond W.P.C.No.10850 of 2010 : 5 : Ext.C2(a) plan and put up fence in the property of petitioners. I make it clear that the fence shall be put up on the boundary of decree schedule property as identified in Ext.C2(a). That is sufficient to allay the apprehension expressed by learned counsel on behalf of the petitioners. I also make it clear that if the respondent seeks detention of the petitioners for alleged violation of the decree, it will be open to the petitioners to make appropriate objection to such prayer. With the above direction the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-