IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 OP(C).NO. 2236 OF 2011(O) ----------------------------------------- E.P.NO.30 OF 2002 IN OS.209/2002 OF MUNSIFF COURT, KATTAPPANA PETITIONER: -------------------- SOSAMMA, W/O. GEORGE, EDAYILAZHIKATHU, NARIYAMPARA KARA, AYYAPPANCOVIL VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.M.NARENDRA KUMAR SRI.JOICE GEORGE RESPONDENT(S): -------------------------- ABRAHAM, S/O. ANTONY, KADUKUMMAKKAL HOUSE, NARIYAMPARA KARA, AYYAPPANCOVIL VILLAGE, UDUMBANCHOLA TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.2236 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF E.P. NO.5 OF 2011 IN O.S. NO.209 OF 1992 DATED 5.2.2001 FILED BY THE RESPONDENT BEFORE THE MUNSIFF, KATTAPPANA. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 26.7.2002 IN E.P. NO.5 OF 2001 IN O.S. NO.209 OF 1992 OF MUNSIFF COURT, KATTAPPANA. EXHIBIT P3 TRUE COPY OF E.P. NO.30 OF 2002 IN O.S. NO.209 OF 1992 FILED BY THE RESPONDENT IN THE COURT OF MUNSIFF, KATTAPPANA. EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT IN E.P. NO.30 OF 2002 FILED BY THE RESPONDENT IN THE COURT OF MUNSIFF, KATTAPPANA. EXHIBIT P5 TRUE COPY OF THE ORDER IN E.P. NO.30 OF 2002 IN O.S. NO.209 OF 1992 IN THE COURT OF MUNSIFF, KATTAPPANA. EXHIBIT P6 TRUE COPY OF THE REVIEW PETITION IN E.A. NO.99 OF 2010 IN E.P. NO.30 OF 2002 IN O.S. NO.209 OF 1992 PASSED BY THE MUNSIFF, KATTAPPANA. EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT AGAINST EXT.P3, ORDER DATED 20.7.2010. EXHIBIT P8 TRUE COPY OF THE ORDER IN E.A. NO.99OF 2010 IN E.P. NO.30 OF 2002 IN O.S. NO.209 OF 1992 PASSED BY THE MUNSIFF, KATTAPPANA. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2236 of 2011 ==================================== Dated this the 21st day of July, 2011 J U D G M E N T The first judgment debtor in E.P. No.30 of 2002 in O.S. No.209 of 1992 of the court of learned Munsiff, Kattappana is the petitioner before me challenging Ext.P8, order on an application for review of Ext.P5, order dated 20.10.2006 in E.P. No.30 of 2002 directing delivery of property. Dispute concerns two acres of land and a building thereon described in the plaint and decree schedules. Respondent-plaintiff sued for a decree for prohibitory injunction against trespass and his being dispossessed from the said property. The suit was decreed on July 05, 1995. Respondent filed E.P. No.5 of 2001 under Order XXI Rule 32 of the Code of Civil Procedure (for short, “the Code”) requesting to evict petitioner from the suit property alleging that she took possession thereof dispossessing respondent in violation of the decree. That execution petition ended in a dismissal as per Ext.P2, order dated 6.07.2002 on a finding that there is no evidence of violation of the decree. Later came E.P. No.30 of 2002 where according to the petitioner, the same relief sought for in E.P.No.5 of 2001 was O.P(C) No.2236 of 2011 -: 2 :- claimed. In that E.P., the executing court passed Ext.P5, order on October 20, 2006 according to the learned counsel, by a single line order, without referring to the contentions of parties and without any finding that petitioner has willfully violated the decree. For review of the said order petitioner filed E.A. No.99 of 2010. That application was dismissed as per Ext.P8, order which is under challenge. Learned counsel has contended that execution of decree under Order XXI Rule 32 is possible only when there is a finding regarding willful disobeyance of the decree. No such finding is entered in the present case. It is also contended that E.P. No.30 of 2002 is barred by the principle of res judicata in view of Ext.P2, order in E.P. No.5 of 2001. Learned counsel contended that there is not even an averment that at any time after Ext.P2, order petitioner has trespassed into the suit property or took forcible possession. 2. Order XXI Rule 32 speaks about execution of decree for injunction and detention of judgment debtor to compel him to comply with the decree when it is shown that there is a willful disobeyance. Here there is no prayer for detention of petitioner in the civil prison and instead the prayer is for delivery of property which petitioner took possession allegedly in violation of the O.P(C) No.2236 of 2011 -: 3 :- decree. 3. So far as alleged violation of the decree is concerned it is not disputed that the decree was passed on July 05, 1995 restraining petitioner from trespassing into the property or forcibly dispossessing respondent which meant that as found by the trial court respondent was in possession of the suit property on the date of judgment and decree and there was a restraint against petitioner trespassing into the property. There is no case or evidence that even prior to the judgment and decree petitioner was in possession of the property. In fairness learned counsel for petitioner submitted that report of the Advocate Commissioner taken in E.P. No.30 of 2002 revealed that during that time petitioner was in possession of the property. Therefore possession of petitioner in the suit property can only be traced to an act after the decree was passed on July 05, 1995. Though the decree is merely for prohibitory injunction when an act is done in violation of that decree the executing court is not powerless to grant relief to the decree holder if necessary by removing the person who is in unlawful possession thereof and in violation of the decree for prohibitory injunction. 4. So far as the contention regarding the bar of res O.P(C) No.2236 of 2011 -: 4 :- judicata is concerned I must find from Ext.P2, order that the finding in that case was only that there was no evidence to show that petitioner was in possession of the property during the time relief was sought for in E.P. No.5 of 2001. That need not be the situation when E.P. No.30 of 2002 was filed. In that situation an enquiry into the claim of respondent that as on the time of filing E.P. No.30 of 2002 petitioner is in possession of the decree schedule property cannot be defeated by the rule of res judicata. Having regard to the contentions raised before me I am inclined to think that review of Ext.P5, order dated 20.10.2006 in the circumstances was meritless and was rightly dismissed. But I am inclined to grant some time to the petitioner to vacate the property. Since learned counsel submitted that petitioner is a widow with a child and they have to find out alternative accommodation I am inclined to grant two months' time for the said purpose. Resultantly, the Original Petition is dismissed. It is directed that delivery proceedings in E.P.No.30 of 2002 in O.S. No.209 of 1992 will stand in abeyance for a period of two months from this day subject to the following conditions: (a) Petitioner shall file an affidavit in the O.P(C) No.2236 of 2011 -: 5 :- executing court within two weeks from this day undertaking to vacate the property on the expiry of the said period of two months without putting forth any claim or objection. (b) Petitioner, during the said period shall not commit any waste in the suit property. THOMAS P. JOSEPH, JUDGE. vsv