IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 15408 of 2009(O) -------------------------- OS.352/1990 of MUNSIFF'S COURT,MUVATTUPUZHA .................... PETITIONER(S): DECREE HOLDER: ---------------------------------------------------- YOHANNAN, S/O. VARKEY, PADINJATTIL HOUSE, POTHANICADU KARA, POTHANIKADU VILLAGE. BY ADV. MR.PEEYUS A.KOTTAM RESPONDENT(S): JUDGMENT DEBTORS: -------------------------------------------------------------- 1. C.M. PAULOSE, S/O. MATHAI, CHOORAKATHOTTATHIL HOUSE, POTHANICADU KARA, POTHANICADU VILLAGE. 2. PHILIP, S/O. PAULOSE, CHOORAKATHOTTATHIL HOUSE, POTHANICADU KARA, POTHANICADU VILLAGE. R1 & R2 BY ADVS. MR.MATHEW SKARIA, MR.JOY JOSEPH (MUNDACKAL), MR.K.J.JOSEMON. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.15408 OF 2009 (O) ----------------------------------- Dated this the 6th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: (a) to call for the entire records leading to Ext.P2 order and set aside the same by issuing a writ of certiorari or any other writ, order or direction and thereby quash Ext.P2 order. (b) to issue a writ of mandamus or any other appropriate writ or order or direction and thereby command the learned Munsiff to quantify a reasonable amount as compensation in lieu of arrest as ordered by this Honourable Court in terms of Ext.P1 order and also direct to pass a fresh order within a stipulated time, as fixed by this Hnourable Court. (c) to grant such other reliefs, which are just and necessary in the interest of justice. 2. Petitioner is the decree holder in O.S.No.352/1990 on the file of the Munsiff's Court, Muvattupuzha. Suit decreed was one for perpetual prohibitory injunction. The execution WPC.15408/09 2 petition under Order XXI Rule 32 CPC was moved by the decree holder alleging that the decree of injunction was violated by the judgment debtors and that resulted in causing collapse of a mud wall separating the boundary of his property, and thereby, he sustained damages. Pursuant to enquiry and being satisfied that the decree of injunction was violated by the judgment debtors, the execution court ordered for detention of the judgment debtors for a period of three months. The judgment debtors challenged that order passed by the execution court by filing a revision, numbered as CRP.No.964/2004, before this Court. After hearing both sides, this Court found that the proceedings taken against the 1st judgment debtor was not sustainable as, admittedly, he was employed abroad and not in the native place when the alleged violation of the decree occurred. As against the other judgment debtors, against whom the execution court entered a finding that they had violated the decree of injunction, this Court set aside the order of detention passed, directing the execution court to consider the question whether they are liable to pay compensation to the decree holder, and the matter was remitted for fresh consideration. Pursuant to such WPC.15408/09 3 remission, the execution court heard both sides and came to the conclusion that whatever steps to be taken by the judgment debtors in reparation of the damages caused had been done by putting up a mud wall and also remitting the amount expended by the decree holder consequent to the violation of the decree, as ordered by the execution court. The claim of compensation sought for by the decree holder was negatived holding that in the execution petition, no such claim was made and also whatever reparation had to be done was carried out. Ext.P2 is the copy of the order passed by the execution court. Impeaching the correctness and propriety of Ext.P2 order, the decree holder has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. This Court in the revision modified the order of detention imposed against the judgment debtors for violation of the decree with direction to the execution court to examine the question whether they are liable to compensate the decree holder, and that being so, no specific claim thereafter need be raised for the decree holder WPC.15408/09 4 to sustain his entitlement to get compensation from the judgment debtors, submits the learned counsel for the decree holder. Further submission of the counsel is that the execution court has discarded the direction given by this Court in the order disposing the revision. On the other hand, the learned counsel for the judgment debtors contended that Ext.P2 order was passed as early on 5.12.2007 and the challenge against that order is pressed into service nearly one and a half years later, and that being so, the writ petition is not entertainable. I do find considerable force in the submission made by the judgment debtors though, prima facie, it would appear that while passing Ext.P2 order, the observations made in the order disposing the revision were not taken serious note by the execution court. However, the delay in challenging that order cannot be brushed aside in considering the entertainability of the writ petition. So much so, I find the writ petition is liable to be dismissed, and I do so. S.S.SATHEESACHANDRAN JUDGE prp WPC.15408/09 5 S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009