IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 CRP.No. 553 of 2008() -------------------------------- AGAINST THE ORDER DATED 20/06/2008 IN EP 168/07 IN OS.874/1996 of PRL.MUNSIFF COURT,ERNAKULAM .................... REVN. PETITIONER(S): JUDGMENT DEBTOR ------------------------------ GEORGE,S/O. UTHUP, MALAMEL HOUSE, HOUSE NO.32/268 KALAMASSERY,CHANGAMPUZHA NAGAR P.O. ERNAKULAM DISTRICT. BY ADV. MR.SANTHAN V.NAIR RESPONDENT(S): ------------------------- 1. BABU VARGHESE, S/O. LATE P.P.VARKEY PADINJATTIL HOUSE, POTHANICADU P.O., KOTHAMANGALAM. 2. SANTHOSH KUMAR C.P. S/O.C.N.PARAMESWARAN, CHADAYAPILLY CHANGAMPUZHA NAGAR P.O. UNICHIRA, ERNAKULAM R1 – R2 BY ADV. MR.V.V.SIDHARTHAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON 28/08/2009 PASSED THE FOLLOWING: tss ORDER ON IA.NO.1624/2008 IN CRP NO.553/2008 CLOSED 28/08/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE TRUE COPY P.S. TO JUDGE tss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.553 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 28th August, 2009 ORDER One among the judgment debtors in E.P.No.168 of 2007 in O.S.No.874 of 1996 on the file of the Principal Munsiff Court, Ernakulam is the petitioner. The revision is directed against the order dated 20.6.2008 by which the learned Munsiff directed the judgment debtors to provide a bell mouth on the entrance of B schedule way at their cost within a period of one month. In the above suit, a decree of perpetual prohibitory injunction had been passed against the judgment debtors from trespassing upon or committing any waste or interfering with the peaceful possession and enjoyment of the plaintiff over his property described as A schedule and also from causing any reduction to the width of the B schedule pathway which at its entrance on the northern side was found having 3.35 meters and at the place in front of A schedule property having 3.20 meters as per C1(a) plan prepared by an Advocate Commissioner with C1 report in the trial of the suit. An appeal preferred by the CRP No.553/08 - 2 - defendants/judgment debtors was dismissed confirming the decision of the trial court. Nearly 8 years after the decree was passed in the suit, the decree holder approached the court alleging that the gate provided at the entrance of B schedule pathway and also the bell mouth provided for easy moving of vehicles to the way had been demolished by the judgment debtors and a new gate and construction had been made preventing the turning of heavy vehicles to the pathway as enjoyed before. Notice being given, the judgment debtors appeared and filed objections contending the gate accidentally collapsed when a lorry taking materials in the property of the first judgment debtor hit against the gate and the compound wall, and so much so, the wall had to be reconstructed and the gate reinstalled as before. Such construction was done forthwith without in any way reducing the width of the pathway at the entrance. Contending that the petition lacked bonafides, the judgment debtors sought for its dismissal. The execution court appointed a Commissioner who after local inspection filed a CRP No.553/08 - 3 - report and plan. On the side of the decree holders including one of them, as P.W.1, and P.Ws.2 to 4 were examined and A1 to A13 were exhibited. The first judgment debtor/ present revision petitioner also got himself examined as R.W.1. The report and plan prepared by the Commissioner were exhibited as C1 and C1 (a). The learned Munsiff, after appreciating the materials produced and hearing the counsel on both sides, found that the decree passed by the court in favour of the decree holders had been violated by the judgment debtors by putting up new constructions at the entrance of the B schedule pathway. From the materials produced, the court also came to the conclusion previously there was a bell mouth at the entrance and at present the newly constructed wall without such bell mouth caused obstruction and prevented the turning of heavy vehicles through the pathway from its entrance to the property of the decree holders. In arriving such a conclusion, the impugned order was passed directing the judgment debtors to provide a bell mouth at the entrance of B schedule pathway by making CRP No.553/08 - 4 - necessary alterations to the constructions made failing which the decree holders was allowed to execute the order under the supervision of an Advocate Commissioner and realise the cost from the judgment debtors. 2. I heard the counsel on both sides. The main thrust of attack pressed into service by the learned counsel for the petitioner/judgment debtor to challenge the orders of the execution court is that there has been no reduction in the width of the pathway at its entrance after the new constructions put up and, further more, in the previous report of the Commissioner, there is no reference that there existed a bell mouth at the entrance of the pathway. That being so, according to the learned counsel, the execution court exceeded its jurisdiction in directing the judgment debtors to make alteration in the newly constructed wall to provide a bell mouth on the case advanced by the decree holders. The execution court can only execute the decree as granted by the court and cannot vary or alter the decree providing for additional relief to the decree CRP No.553/08 - 5 - holders which are not covered by the decree is the main thrust of challenge pressed by the learned counsel to assail the impugned order passed by the learned Munsiff. Perusing the order passed by the learned Munsiff, I find no merit in the challenges raised by the learned counsel for the revision petitioner/judgment debtor. By putting up the new construction by the judgment debtors as admitted by them, it is seen, the width of the pathway at its entrance touching the AKG road has increased a bit than what is stated under the decree. The Commissioner appointed on the execution side has reported that the width at the entrance is now 3.48 meters, whereas in the decree passed in the suit that width as reflected in C1(a) plan was stated as 3.35 meters. So, evidently the width has been increased at least at the entrance of the pathway after the reconstruction. By putting up the new construction, which, according to the decree holders, was purposely done during their absence to cause them injury in enjoyment of the pathway, and that stoutly disputed by the judgment debtors contending CRP No.553/08 - 6 - that the constructions existed earlier collapsed accidentally when a vehicle with materials was brought to the properties of one of them, whatever be the reasons for reconstruction of the wall and reinstallation of the gate by the judgment debtors, the question to be considered is whether by putting up the new construction, the enjoyment of the B schedule pathway by the plaintiff as before had been restricted or interfered with in any manner after a decree had been granted by the court in their favour restraining the judgment debtors from causing any such interference. So much so, the crucial aspect to be looked into is whether there was a bell mouth at the entrance of the pathway before and the new construction had been put up without such bell mouth after the previous wall collapsed by wilful act or accidentally. The court below, on the materials produced, especially A5 series and the testimonies of the decree holder and their witnesses was satisfied that there existed a bell mouth at the entrance and the new construction had been put up without such bell mouth. I find no merit in the challenge raised CRP No.553/08 - 7 - by the learned counsel for the judgment debtor that in the previous report prepared by the Commissioner on the trial side, no reference had been made of a bell mouth at the entrance of the pathway. Particular reference to the bell mouth was not made in the previous report does not in any way enure to the benefit of the judgment debtors to set forth a case that there was no bell mouth, which is belied by the materials tendered in the proceedings. Learned Munsiff, on the basis of the materials produced, found that the bell mouth existed at the entrance had been taken away. Though the judgment debtors have not violated the decree by reducing the width, and even increased it by the new construction, the learned Munsiff noticed that not providing of the bell mouth as existed earlier prevented the decree holders from enjoying of the B schedule pathway as before and the new construction made by the judgment debtors have fructified the decree passed in favour of the decree holders. Noticing that it cannot be permitted under law, the learned Munsiff passed the order as indicated above directing CRP No.553/08 - 8 - the judgment debtors to make necessary changes in the construction providing a bell mouth as existed before at the entrance of B schedule pathway. The order passed by the learned Munsiff, in the given facts of the case, is valid and correct. No interference with that order in exercise of the revisional jurisdiction vested with this court is called for. Revision lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE