IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 WP(C).No. 5050 of 2009(A) ------------------------- AGAINST THE ORDER IN EA.426/2008,EP.251/1997 IN OS.539/1991 of PRINCIPAL MUNSIFF COURT II,KOZHIKODE. .................... PETITIONER(S): ------------------------- VATTAKANDI KALANDAN, S/O.AMMAD, RESIDING AT NOORAMTHOTTIL,68 YEARS, KODENCHERI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. MR.K.M.FIROZ RESPONDENT(S): --------------------------- KOONUNGAL MUHAMMAD, S/O.MAMMATHEESSA, RESIDING AT NOORAMTHOTTIL,KODENCHERY AMSOM DESOM, KOZHIKODE TALUK. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5050/2009 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT IN CRP.NO.3305/2001 DTD. 24/09/2004 OF THIS HON'BLE COURT. P2: COPY OF THE ORDER IN E.A.NO.426/2008 IN E.P.251/1997 IN O.S.539/1991 DTD. 30/09/2008 OF PRINCIPAL MUNSIFF II, KOZHIKODE. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.5050 of 2009 - A --------------------------------- Dated this the 11th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To call for the records leading to Exhibit P2 order dated 30.9.2008 passed by the Pincipal Munsiff Court-II, Kozhikode in E.A.No.426/2008 in E.P.No.251/1999 in O.S.No.539/1991 and set aside the same. ii) To direct the Principal Munsiff Court-II, Kozhikode to allow E.A.No.426/2008 in E.P.No.251/1997 in O.S.No.539/1991” 2. Petitioner is the decree holder in E.P.No.251 of 1997 in O.S.No.539 of 1991. The decree granted was one for perpetual prohibitory injunction alleging violation of the decree by the judgment debtor. The decree holder filed an application under Order XXI Rule 32 CPC. That application, after enquiry, was dismissed by the execution court against which the decree holder filed a revision before this Court and vide Ext.P1 order, this Court set aside the dismissal of the execution petition directing the execution court to allow the petitioner to amend the execution petition to incorporate prayers as covered by Order XXI Rule 32 CPC. Pursuant thereof the execution court restored the W.P.(C).No.5050 of 2009 - A 2 execution petition to file and the decree holder moved an amendment application to claim damages from the judgment debtor. The decree holder was examined in the proceedings. No counter evidence was let in by the judgment debtor. It is submitted by the counsel that a commission was also taken out by the decree holder to assess the damages. After the examination of the decree holder, he moved an application for further amendment in the execution petition to incorporate the quantum of damages at Rs.1,50,000/-. That application was dismissed by the execution court vide Ext.P2 order. propriety and correctness of Ext.P2 order is challenged in the writ petition. 3. Notice of the application was ordered to the respondent. Petitioner was also directed to serve copy on the counsel appearing for the respondent in the court below. A memo has been filed that such service has been complied with. I am satisfied that due service is effected on the respondent. He has not entered appearance. 4. I heard the counsel for the decree holder. 5. Correctness of Ext.P2 is impeached contending that the amendment sought for incorporation of the quantum of W.P.(C).No.5050 of 2009 - A 3 damages in the execution petition is essential to advance the ends of justice. Having regard to the facts and circumstances presented and the submissions made by the counsel, I do not find any impropriety or illegality in the order passed by the execution court in turning down the amendment sought which has made at a belated stage, after recording of the evidence in the proceedings. This Court setting aside the previous order has given the decree holder an opportunity to amend the execution petition so as to claim damages, but, till his examination was over in the proceedings, the proposed amendment for quantifying the damages was not made. Definitely, if the amendment proposed is carried out in execution petition it will cause prejudice to the judgment debtor as pointed out by the execution court. The writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-