IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 25161 of 2009(O) --------------------------------------- AGAINST THE ORDER DATED 03/08/2009 IN EP.314/08 IN OS.559/2001 of PRL.. MUNSIFF'S COURT, KANNUR .................... PETITIONER(S): ---------------------- V.JAMAL HAJI,S/O.ABDULLA HAJI, AGED 81 YEARS,NIZAM MANZIL, MADAYI AMSOM,PUTHIYANGADI ROAD,KANNUR. BY ADV. MR.A.K.ABDUL AZEEZ MR.P.R.HARIKUMAR RESPONDENT(S): ------------------------- MADAPPURAYIL MUNEERA, D/O.HUSSAIN, AGED 42 YEARS,MONALISA BEAUTY PARLOUR, ALFALA COMPLEX,NETHAJI ROAD,KANNUR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.25161 of 2009 - O --------------------------------- Dated this the 7th day of September, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “To set aside Exhibit P1 order dated 3.8.2009 in E.P.No.314/2008 in O.S.No.559/2001 on the file of the Munsiff Court, Kannur, on invoking supervisory jurisdiction”. 2. Petitioner is the defendant/judgment in E.P.No.314 of 2008 in O.S.No.559 of 2001 on the file of the Munsiff Court, Kannur. Respondent/plaintiff filed the above suit for a decree of perpetual prohibitory injunction to restrain the petitioner/defendant from evicting him forcibly from a shop room. Suit after trial was dismissed by the trial court against which respondent preferred an appeal. The appellate court granted a decree in favour of the respondent/plaintiff as sought for in the suit. Petitioner/defendant preferred a second appeal, R.S.A.No.260 of 2008 before this Court which was disposed of by judgment dated 27.3.2008 confirming the decree and judgment passed by the first appellate court. Ext.P5 is the copy of that judgment. Pursuant to passing of Ext.P5 judgment, respondent/plaintiff moved an application under Order W.P.(C).No.25161 of 2009 - O 2 XXI Rule 32 r/w Section 151 of CPC contending that violating the decree of perpetual prohibitory injunction she was forcibly evicted from the shop room and therefore sought direction/orders from the Court from restoring her possession. The application was resisted by the petitioner/judgment debtor filing objections. After considering the objections raised, the court below passed Ext.P1 order directing the petitioner/judgment debtor to put the respondent/decree holder in possession of the plaint schedule shop room. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. 4. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P1 order challenged in the writ petition, I find no notice to the respondent is necessary and hence it is dispensed with. The learned counsel for the petitioner inviting my attention to the operative portion of Ext.P5 judgment passed by this Court in R.S.A.No.60 of 2008 advanced an argument that the remedy of the decree holder/respondent is to file a fresh suit for recovery of W.P.(C).No.25161 of 2009 - O 3 possession. Obviously, the word 'plaintiff' used in the operative portion of Ext.P5 judgment was a mistake as it should have been 'defendant'. Admittedly, the decree holder is only a tenant of the building having no title over the building in the plaint schedule shop room. Only the title holder can file a suit for recovery of possession on the strength of his title. The judgment debtor cannot be allowed to capitalise on the word 'plaintiff' used in the operative portion of Ext.P5 judgment where it is shown to be prima facie a mistake for the word 'defendant'. Perusing Ext.P1 order passed by the execution court, I find there is no illegality of impropriety in the direction given by the learned Munsiff to the judgment debtor to restore the possession of the shop room to the decree holder in whose favour a decree of perpetual prohibitory injunction had already been granted by the court. There is no merit in the writ petition, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-