IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 CRP.No. 1004 of 2004(B) ----------------------- AGAINST THE ORDER DATED 08/03/2004 IN EA.58/04 IN EP.28/02 IN OS.218/1999 of MUNSIFF COURT,CHENGANNUR .................... REVN. PETITIONER(S): --------------------- T.G.MATHEW, THADATHILETHU VEETTIL, PADINJARU NADASSALAYIL, CHERIYANAD WEST MURI, CHERIYANAD VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.M.P.KRISHNAN NAIR SRI.V.MANOJ KUMAR RESPONDENT(S): --------------- 1. MANIYAN, PALLATHU KIZHAKKETHIL HOUSE, CHERIYANADU PADINJARE MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK. 2. JAYAMOHAN, OTTAPLAVIL VEETTIL, CHERIYANADU PADINJARE MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK. 3. MADHAVAN NAIR, KADAPLAVILAYIL, CHERIYANADU PADINJARE MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK. 4. V.K.VASUDEVAN, VARIKKOLIL VEETTIL, CHERIYANAD KIZHAKKE MURI, CHERIYANADU VILLAGE, NEDUVARAMCODE P.O., CHENGANNUR TALUK. 5. RAGHAVA KURUP, PLAVILA VADAKKETHIL, CHERIYANAD PADINJARE MURI, CHERIYANADU VILLAGE, CHENGANNUR TALUK. ADV. SRI.K.M.SATHYANATHA MENON FOR R2TO5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 1004 OF 2004 ------------------------------------------------------ Dated this the 28th day of July, 2010 O R D E R The petitioner filed a suit for permanent prohibitory injunction against the first respondent. The suit was decreed on 6.7.1999. The decree reads as follows: “That the suit is decreed with costs and the defendant or anybody under him are restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property and from destroying the western compound wall and barbed wire fencing therein and from constructing any new pathway through the plaint schedule property or from committing any waste therein.” The petitioner filed Execution Petition as E.P.No.28 of 2002, on the file of the Munsiff's Court, Chengannur for enforcing the decree. Apart from the first respondent Judgment Debtor, four other persons were also shown as respondents 2 to 5 in the Execution Petition. They were not eo-nomine parties to the suit. The Execution Petition was filed under Rule 32 of Order XXI of the Code of Civil Procedure. C.R.P. NO.1004 OF 2004 :: 2 :: Respondents 2 to 5 in the Execution Petition challenged the maintainability of the Execution Petition as against them. They contended that they being not eo-nomine parties to the suit, the Execution Petition is not maintainable against them. The executing court, by the order impugned in this Civil Revision Petition, accepted the objection raised by respondents 2 to 5 and held that the Execution Petition is not maintainable against them. 2. The decree holder alleged that the respondents in the Execution Petition violated the decree and caused destruction to the property whereby the decree holder sustained a loss of Rs.45,000/-. According to the decree holder, the first respondent judgment debtor led the other respondents and caused destruction to the property. The first respondent judgment debtor made it appear that he was not involved in the offending act. The decree holder contended that respondents 2 to 5 are the henchmen of the first respondent judgment debtor. They were aware of the decree and with knowledge of the contents of the decree, they violated the decree. Therefore, respondents 2 to 5 are also liable to be proceeded with under Rule 32 of Order XXI of the Code of Civil Procedure, though they were not eo-nomine parties to the suit. C.R.P. NO.1004 OF 2004 :: 3 :: 3. In Soman v. Appukutty (1987 (2) KLT Short Note 59 case No.87), it was held that though a decree obtained in a suit instituted in accordance with the provisions of Order I rule 8 will be binding on all the members that belong to the class sought to be represented, by operation of the principle of res judicata embodied in Explanation VI to Section 11 of the Code of Civil Procedure, it may not be enforcible in an injunction suit personally against persons who are not eo-nomine parties, in order to make them liable for disobedience of the decree. 4. The prayer made by the decree holder in the Execution Petition is to detain the respondents in civil prison and to attach their immovable properties. Rule 32 of Order XXI of the Code of Civil Procedure provides that whether the party against whom a decree for injunction has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced, in the case of a decree for injunction, by his detention in civil prison or by the attachment of his property, or by both. The consequence of an order under Rule 32 of Order XXI of the Code of Civil Procedure is drastic. A person who is not an eo nomine party C.R.P. NO.1004 OF 2004 :: 4 :: to the suit cannot be proceeded with under Rule 32 of Order XXI of the Code of Civil Procedure. If Rule 32 of Order XXI is resorted to against persons who are not parties to the suit, on the ground that they are the henchmen of the judgment debtor, it would lead to disastrous consequences. Any person of the choice of the decree holder can be roped in and proceeded against under Rule 32 of Order XXI at the whims and fancies of the decree holder. Such a person against whom proceedings are taken had no opportunity to defend the suit. He had no opportunity to put forward his contentions. The present suit was not a representative suit. It was a simple suit for injunction. The decree passed against the judgment debtor was binding on him personally and not against persons who were not made parties to the suit. A decree for permanent prohibitory injunction is personal in nature, though it relates to immovable property. A decree for prohibitory injunction would be passed in such cases injuncting the judgment debtor from doing something which affects the rights of the decree holder. If somebody else does something affecting the rights of the decree holder, the latter has remedy against the wrong doers either before the civil court or by setting criminal law in motion, as the case may be. That does not mean that those persons who are not parties to C.R.P. NO.1004 OF 2004 :: 5 :: the suit could be proceeded against under Rule 32 of Order XXI of the Code of Civil Procedure. If the decree holder proves that the henchmen of the judgment debtor violated the decree at the instance of the judgment debtor, that may be a ground for proceeding against the judgment debtor under Rule 32 of Order XXI of the Code of Civil Procedure. Even if somebody who is not a party to the suit violates the decree, and if such violation is at the instigation of the judgment debtor, the judgment debtor would be responsible for such acts and he can be proceeded against under Rule 32 of Order XXI, depending upon the facts and circumstances of each case. Otherwise, any decree can be violated, by employing strangers to the suit by the judgment debtor. I am of the view that the court below was right in holding that the Execution Petition was not maintainable against respondents 2 to 5 in the Execution Petition. The Civil Revision Petition therefore fails and it is accordingly dismissed. (K.T.SANKARAN) Judge ahz/