IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 CRP.No. 274 of 2003(B) ---------------------- AGAINST THE ORDER DATED 25/01/2003 IN EP.150/1992 IN OS.102/1981 of MUNSIFF COURT, KOTTARAKKARA .................... REVN. PETITIONER(S)/JUDGMENT DEBTOR: ------------------------------------- THE KOTTARAKKARA GRAMA PANCHAYATH, KOTTARAKKARA, REP. BY ITS EXECUTIVE OFFICER (SECRETARY). BY ADV. SRI.C.J.JOY SRI.V.J.JAMES SRI.C.C.ABRAHAM RESPONDENT(S)/DECREE HOLDERS/PETITIONERS: ------------------------------------------ 1. ABDUL HAMEED RAWTHER, SABURA SADANAM, MUSLIM STREET, PADINJATTINKARA, KOTTARAKKARA VILLAGE, KOTTARAKKARA TALUK. 2. SHAHUL HAMEED RAWTHER, LAILA MANZIL, PADINJATTINKARA, KOTTARAKKARA AVILLAGE. 3. ADDL.3. UMAZAL UMMAL SAINABA BEEVI, SABURA SADANAM, PADINJATTINKARA MURI, KOTTARAKKARA VILLAGE. 4. ADDL.4. S. JUHARA BEEVI, AGED 40 YEARS, DO. DO. 5. ADDL.5. SABURA BEEVI OF DO. 6. ADDL.6. A. MUHAMMAD RASHEED OF DO. 7. ABDUL SALIM OF DO. 8. SHEMIM MOOHAMMED OF DO. ADV. SRI.SYAM J SAM FOR R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.P.NO.685 OF 2003 IN C.R.P.NO.274 FO 2003 DISMISSED. 20.10.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.274 OF 2003 (B) ----------------------------------- Dated this the 20th day of October, 2009 O R D E R Revision petitioner, a local authority, is the judgment debtor in E.P.No.150 of 1992 in O.S.No.102 of 1981 on the file of the Munsiff Court, Kottarakkara. For disobeyance of a decree of injunction, the Executive Officer of the local authority, has been ordered to be detained in civil prison for one month. The impugned order is dated 25.1.2003. Previously, after conducting enquiry, by order dated 8th November, 2002, the execution court had entered a finding that the judgment debtor had violated the decree of injunction. However, the judgment debtor was given an opportunity to undo the mischief, removal of concrete slabs put up in the decree schedule property violating the decree of injunction, within two weeks from the date of the order. That order not being complied with, the present order impugned in the revision was passed. CRP.274/03 2 2. I heard the counsel on both sides. The judgment debtor had preferred an application before the execution court seeking one month more after the time limit fixed under the previous order dated 8th November, 2002. According to the learned counsel for the petitioner, the judgment debtor had also sought for locating the boundary of the decree schedule property and removal of the goods of the decree holders, vegetable merchants, who are stated to be using the property for keeping sacks filled with vegetables. That application filed on 21st November, 2002 still awaits consideration, is the submission of the counsel seeking its disposal for compliance of the order. The impugned order has to be quashed directing the court below to consider the aforesaid application and its disposal on merits, is the plea of the counsel. I am not impressed by the submissions made by the counsel. The order dated 8th November, 2002 holding the petitioner/judgment debtor as a condemner, who had violated the decree of injunction, has become final and conclusive without any challenge whatsoever. The application moved imputing some CRP.274/03 3 obstructions from the part of the decree holders and seeking for identification of the boundary of the decree schedule property for removal of the concrete slabs allegedly put up in violation of the decree of injunction after passing of the above order dated 8th November, 2002, deserves to be noticed only for its rejection. The judgment debtor cannot be allowed to perpetrate the acts done in violation of the injunction; but, I do note that the court below was not justified in passing an order of arrest of the Executive officer representing the judgment debtor, a local authority. Where the execution proceeded against that executive officer was not for any acts done by him either in his personal or official capacity, it is not proper to send that officer to prison for disobeyance of the decree of injunction by the local authority. The officer holding the charge of the Panchayath who disobeyed the order for putting up of the concrete slabs, it is submitted, has already retired from service. When that be so, sending to prison his successor in office for disobeyance of the decree by the local authority is not at all proper. However, that will not relieve the local authority from undoing the mischief done in violation CRP.274/03 4 of the decree of injunction. Sub Rule (5) of Rule 32 of Order XXI of the Code of Civil Procedure enables the court to pass such orders as are necessary to compel the judgment debtor to do the acts required to be done to undo the mischief committed in disobeyance of the decree of injunction. So much so, on modification of the order of arrest under the impugned order, there shall be an order against the local authority directing it to remove the concrete slabs from the decree schedule property as directed by the court in the previous order dated 8th November, 2002, within a period of six weeks from the date of receipt of a copy of this order. The judgment debtor shall move an application before the execution court within one month seeking its assistance for obeying the acts required to be done for removal of the concrete slabs under the supervision of an Advocate Commissioner, and meet the expenses for having such supervision. The execution court shall depute an Advocate Commissioner, if any such request is made, preferably, the Commissioner who had prepared the earlier report in the case. In case, the judgment debtor fails to carry out the CRP.274/03 5 removal of the concrete slabs within a period of six weeks complying with the directions as indicated above, the decree holder shall be permitted to remove such concrete slabs with the assistance of the court and realise the expenses thereof from the judgment debtor. In such an event, the court below shall also proceed for attachment of the property of the judgment debtor and pass appropriate orders for undoing the mischief done in disobeyance of the decree. Revision is disposed with the above direction. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.274 OF 2003 (B) ----------------------------------- O R D E R 20th October, 2009