IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 WP(C).No. 6389 of 2009(O) ------------------------- OS.393/2008 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER(S): ------------------------- KUNJAMMA, AGED 42,W/O.ULAHANNAN, KANJIRTHUMKUDY VEETTIL, ASAMANNOOR KARA, ASAMANNOOR VILLAGE. BY ADVS. MR.DINESH R.SHENOY, MR.V.V.UNNIKRISHNAN, MR.A.JOSEPH GEORGE, MR.G.HARIKRISHNAN (TRIPUNITHURA). RESPONDENT(S): --------------------------- * 1. GEEVARGHESE,S/O.ULAHANNAN,KANJIRTHUMKUDY VEETTIL, ASAMANNOOR KARA, ASAMANNOOR VILLAGE. *NAME & ADDRESS OF THE 1ST RESPONDENT IS CORRECTED AS: VARGHESE, S/O.POULOSE, KANJIRATHUMKUDI VEETTIL, NEDUNGAPRA P.O.,PANNACHIYAM. (VIDE ORDER DTD. 24/06/2009 IN I.A.NO.7465/2009) 2. PONNAPPAN, S/O.KUNJAN, CHENGAYAM VEETTIL, PANICHAYAM KARA, ....DO.... VILLAGE. 3. M.O.POULOSE,MANKUZHA HOUSE, ASAMANNOOR VILLAGE,ASAMANNOOR KARA. 4. V.N.RAJAN, VATTAKKATTU HOUSE,PUNNAYAM KARA, ASAMANNOOR VILLAGE. 5. K.P.ULAHANNAN, KANJIRATHUMKUDY HOUSE, ASAMANNOOR VILLAGE, PUNNAYAM KARA. 6. SHAJI SARIGA, PARAKKADAN HOUSE, PANICHAYAM KARA, ASAMANNOOR VILLAGE. R2 & R5 BY ADVS.MR.M.D.SASIKUMARAN, MR.K.S.HARIHARAPUTHRAN, MR.GEORGE MATHEW, MR.P.J.JOSEPH. R3,4,6 BY ADVS. MR.M.C.ANTONY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.6389/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT DTD. 4/09/2004 IN O.S.NO.393/1998 MUNSIFF COURT, PERUMBAVOOR. P2: COPY OF E.P.NO.98/2007 IN O.S.NO.293/1998, MUNSIFF COURT, PERUMBAVOOR. P3: COPY OF THE OBJECTION DTD. 10/01/2008 FILED BY THE JUDGMENT DEBTORS 2 TO 6 IN E.P.NO.98/2007 IN O.S.NO.393/1998, MUNSIFF COURT, PERUMBAVOOR. P4: COPY OF THE REPORT OF ADVOCATE COMMISSIONER,B.REGHU KUMAR DTD.1/1/2008 IN E.P.NO.98/2007 IN O.S.NO.393/1998, MUNSIFF COURT, PERUMBAVOOR. P5: COPY OF PAPER REPORT WITH PHOTOGRAPH IN MANGALAM DAILY DTD. 25/10/2007. P6: COPY OF NEWSPAPER REPORT IN THE MATHRUBHUMI DAILY DTD. 25/10/2007. P7: COPY OF THE ORDER DTD. 10/12/2008 IN E.P.NO.98/2007 IN O.S.NO. 393/1998, MUNSIFF COURT, PERUMBAVOOR. P8: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, ADVOCATE B.REGUKUMAR DTD.12/08/1998 INO.S.NO.393/1998, MUNSIFF COURT, PERUMBAVOOR. P9: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, ADVOCATE B.REGUKUMAR DTD. 31/3/1999 INO.S.NO.393/1998, MUNSIFF COURT, PERUMBAVOOR. P10: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, ADVOCATE B.REGUKUMAR DTD. 4/01/2000 IN O.S.NO.393/1998, MUNSIFF COURT, PERUMBAVOOR. P11: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, ADVOCATE B.REGUKUMAR DTD. 4/06/2003 INO.S.NO.393/1998, MUNSIFF COURT, PERUMBAVOOR. P12: COPY OF THE DECREE PASSED IN O.S.NO.393/1998 WITH SURVEY SKETCH. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss WPC.NO.6389/2009 O APPENDIX PETITIONER'S EXHIBITS: S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.6389 OF 2009 -------------------------- Dated this the 14th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) A writ , order or direction, setting aside Ext.P7 order dated 10/12/2008 in E.P No.98/2007 in O.S No.393/1998, Munsiff Court, Perumbavoor and allowing the Execution Petition for. ii) Grant such other reliefs as are deemed fit and proper in the facts and circumstances of the case. 2. Petitioner is the decree holder in O.S No.393 of 1998 on the file of the Munsiff Court, Perumbavoor. In the above suit, a decree for perpetual prohibitory injunction was passed W.P.(C).No.6389 OF 2009 Page numbers restraining the respondents / defendants in the suit from cutting open a new way through the plaint property and from causing any damage to the improvements thereof. Ext.P12 is the decree passed in the suit. Pursuant to that decree, it is the case of the petitioner, a portion of the southern boundary wall of the property was demolished and a new way was cut open by the respondents. An application under Order 21 Rule 32 of the Code of Civil Procedure was filed by the petitioner to take action against the respondents and also for orders directing them to restore the boundary wall which was demolished. In the enquiry on that application, an advocate commissioner was appointed, who after local inspection, filed a report. Some press reports showing that at the instance of the respondents a way was cut open through the property were also produced to substantiate the case canvassed by the petitioner. W.P.(C).No.6389 OF 2009 Page numbers The respondents had filed objections contending that no new way was cut open, but there already existed a way which alone is being made use by the public. The learned Munsiff after hearing both sides dismissed the application of the decree holder by Ext.P7 order. 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 counsel on both sides. At the time of hearing, the learned counsel for the petitioner submitted that the contentions raised by the defendant that no new way was cut open militate against the decree granted in favour of the decree holder which challenged in appeal was also found against the respondents. The learned counsel submitted that since no oral evidence was adduced W.P.(C).No.6389 OF 2009 Page numbers by the decree holder in support of his petition for taking action against the respondents for disobeying the decree of injunction on the available records it may not be possible to enter a conclusive finding that the respondents had violated the decree, but all the same the grievance canvassed by the counsel is to the effect that the court below had made some observations in Ext.P7 order to the fact that the decree holder has to file a separate suit for fixation of his boundary to enforce the second relief claimed in the petition for restoring the demolished portion of the southern boundary wall. According to the learned counsel, since the boundary is already fixed, no separate suit is necessary and in view of the perpetual prohibitory injunction already granted by the court, he is entitled to reconstruct and repair the boundary wall. I do not want to express any opinion on the legal rights of the W.P.(C).No.6389 OF 2009 Page numbers petitioner to reconstruct the boundary wall. But I find, the observation made by the court that for constructing boundary wall, decree holder has to obtain a decree for fixation of boundary was not warranted in the given facts of the case. That observation will not stand in the way of the petitioner in enforcing his legal rights, if any, available. Subject to the above observations, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv