IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 CRP.No. 668 of 2006() --------------------- AGAINST THE ORDER IN EP 76 1995 IN OS.390/1993 of MUNSIFF COURT,CHENGANNUR .................... REVN. PETITIONER/DECREE HOLDER ------------------------------------------ ROSAMMA JEROME, VELASSERI VADAKKETHIL, KIZHAKKEDATHU VETTIL, PAVOOKKARA MURI, KURATTISSERI VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS/JUDGMENT DEBTORS: ----------------------------------------------------- 1. ALEXANDER RESIDING FROM 04.07.1995 AT VELASSERI VADAKKETHIL, KIZHAKKEDATHU VETTIL, PAVOOKKARA MURI, KURATTISSERI VILLAGE FROM ANCY AUTOMOBILE, VADASSERIKARA MURI, KURATTISSERI VILLAGE, CHENGANNUR TALUK. 2. LAILA OF RESIDING FROM 04.07.1995 AT VELASSERI VADAKKETHIL, KIZHAKKEDATHU VETTIL, PAVOOKKARA MURI, KURATTISSERI VILLAGE FROM ANCY AUTOMOBILE, VADASSERIKKARA MURI, KURATTISSERI VILLAGE, CHENGANNUR TALUK.. ADV. SRI.T.K.M.UNNITHAN SRI.T.K.MARTHANDAN UNNITHAN FOR R1 & R2 SRI.V.JAYAKUMAR FOR R1 & R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON 09/12/2009 PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.668 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 9th December, 2009 ORDER The revision is directed against the order dismissing an application moved by the petitioner/decree holder for proceeding against the respondents/judgment debtors for violating a decree of injunction. Petitioner is the plaintiff/decree holder in O.S.No.390 of 1993 in which a decree of perpetual prohibitory injunction was granted in her favour and against the respondents/judgment debtors from trespassing upon the plaint property having an extent of 7 cents comprising a building. The first respondent is the brother of the petitioner and the second respondent, the wife of the first respondent. A decree was passed in favour of the petitioner in the above suit on merits negativing the contention raised by the defendants that they are in occupation of the building comprised in the plaint property. From the decree there was no challenge by way of appeal, and it has become final and conclusive. Alleging that after the passing of the decree the respondents trespassed upon the property and occupied the building, petitioner moved an application under Order 21 Rule 32 of the Code of Civil Procedure to proceed CRP No.668/06 - 2 - against them for violating the injunction, and to get them evicted from the building. That application was resisted by the respondents canvassing the same defence taken earlier that they are continuing in occupation of the building which commenced before the institution of the suit. An advocate commissioner was deputed by the court for local inspection, who after such inspection filed a report and a rough sketch. Petitioner and an advocate commissioner were examined as witnesses and A1, a letter issued by the District Panchayat Officer, Alappuzha was exhibited in support of the application. On the side of the respondents, two witnesses were examined and B1 to B3 were exhibited. The learned Munsiff, after appreciating the materials produced, forming an opinion that it is difficult to come to a conclusion whether the respondents have trespassed into the property violating the decree, dismissed the application. Propriety and correctness of that order is challenged in the revision. 2. I heard the counsel on both sides. A preliminary objection was canvassed by the learned counsel for the respondent to contend that a revision would not lie against the impugned order placing reliance on Shiv Shakti Co-operative Housing Society v. Swaraj Developers [2003(2) KLT 503(SC)]. I find no merit in the objection. CRP No.668/06 - 3 - Challenge raised in the revision is against a final order passed in an application under Order 21 Rule 32 of the Code of Civil Procedure dismissing an application moved by the decree holder for proceeding against the judgment debtors imputing violation of the decree of injunction. That order is final, and amenable to a challenge before this court by way of a revision under Section 115 of the Code of Civil Procedure. 3. Perusing the impugned order in the revision with reference to the submissions made by the counsel, I find the learned Munsiff has misdirected his enquiry without taking note of the binding effect of the decree on the parties and also the scope and ambit of Order 21 Rule 32 of the Code of Civil Procedure. Indisputably, a decree of injunction was passed in the suit in favour of the revision petitioner/decree holder in respect of the plaint property having an extent of 7 cents comprising a building negativing the challenge raised by the judgment debtors/defendants that they have occupation over the building situated in the property. That decree passed on merits has become final and conclusive without any challenge whatsoever. The present petition had been filed by the decree holders setting forth a case that there was a subsequent trespass after the CRP No.668/06 - 4 - passing of the decree, and occupation over the building thereof, by the judgment debtors. That was resisted by the judgment debtors canvassing the very same challenge advanced to resist the suit claim in trial that they had possessory right and occupation over the building even before its institution. In other words, the defence that was repelled after adjudication by the court was again canvassed in execution to resist the decree of injunction. Without examining the question whether such a challenge could be canvassed to resist the decree, it is seen, the court below proceeded with an enquiry to assess the merit of that case setforth for resisting the execution of the decree. In this connection, it is pertinent to take note of the decision relied by the apex court in P.K.Vijayan v. Kamalakshi Amma (AIR 1994 SC 2145) wherein it has been held that raising of different pleas at various stages in the pendency of a suit or proceeding itself is an abuse of process of the court and an omission to raise all available relevant pleas at the earlier stage when the action is initiated would constitute constructive res judicata preventing the raising of the same at a later point of time. The apex court has observed thus: “It is a sheer abuse of the process of the Court to CRP No.668/06 - 5 - raise at each successive stages different pleas to protract the proceedings or to driver the party to multiplicity of proceedings. It would be fair and just that the parties to raise all available relevant pleas in the suits or proceedings when the action is initiated and the omission thereof does constitute constructive res judicata to prevent raising of the same at a later point of time thereby it must be deemed that they are waived.” When that be the case in respect of raising of different pleas at successive stages in a suit or proceeding, what is seen in the present case is the very same defence canvassed in the suit which had been repelled after adjudication had been canvassed by the judgment debtor to resist the decree of injunction granted in favour of the revision petitioner/decree holder; and, after enquiry, assessing the merit of that defence, the court below had expressed its helplessness and difficulty “to come to a conclusion that the respondents have trespassed into the plaint scheduled property violating the decree.” The respondents who are bound by the decree could not have canvassed the defence which was canvassed in trial and found against by the court to resist the decree was lost sight of by the CRP No.668/06 - 6 - learned Munsiff in appreciating the facts and circumstances presented in the case. The impugned order is patently erroneous and unsustainable in law. Setting aside the order, the court below is directed to pass appropriate orders on the application moved by the revision petitioner/decree holder in accordance with law on the materials already tendered in the proceeding, as expeditiously as possible, at any rate, within a period of two months from the date of receipt/production of a copy of this order. Revision is disposed as indicated above. srd S.S. SATHEESACHANDRAN, JUDGE