IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 36722 of 2009(O) -------------------------- AGAINST THE ORDER IN EP.178/2009 IN OS.272/2003 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER(S): ------------------------- GIRISH, S/O.RAMAKRISHNAN ALAPARAMBIL HOUSE, AZHIKKODE VILLAGE, DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. MR.V.M.KRISHNAKUMAR RESPONDENT(S): ---------------------------- VELUKUTTY, KAIMATHURUTHY VEETTIL, AZHIKKODE VILLAGE/ DESOM,KODUNGALLUR TALUK, THRISSUR DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.36722 OF 2009 () ----------------------------------- Dated this the 14th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to direct the Munsiff Court, Kodungallur to dispose of Exts.P2 and P3 petitions within such time as may be fixed by this Honourable Court. 2. Petitioner is the plaintiff in O.S.No.272 of 2003 on the file of the Munsiff Court, Kodungallur. Suit was one for perpetual prohibitory injunction and the respondent, the 1st defendant. Suit was compromised under the terms of Ext.P1 settlement and a compromise decree was passed. The dispute related to a pathway described as C schedule in the WPC.36722/09 2 plaint and under the compromise decree, the defendant agreed not to cause any obstruction in the pathway. However, pursuant to the decree, the defendant flouted the compromise decree is the case of the petitioner/decree holder to move an application under Order XXI Rule 32 of the Code of Civil Procedure for removal of the obstruction and to proceed against the respondent/judgment debtor. Respondent on appearance, filed objection to that petition. But despite several postings, the enquiry over the petition is not conducted and the proceedings are completed, is the grievance espoused by the petitioner invoking the visitorial jurisdiction of this Court for issue of writ/direction/order to the court below for an expeditious disposal of the proceedings. 2. A report from the learned Munsiff was called for. It is reported that the respondent/judgment debtor filed objection on 28.5.2009, but, thereafter both parties were never ready for hearing. Petitioner/decree holder has also not moved any application for advancing the hearing is the further submission made in the report of the learned Munsiff. The WPC.36722/09 3 report is far from satisfactory. The report would indicate that the petition has not been posted for enquiry at all, but, straight away for hearing after filing of the objection of the judgment debtor. In a proceeding initiated under Order XXI Rule 32 of the CPC on an execution application imputing the flouting of the decree of injunction by the opposite party, it is incumbent upon the court to have an enquiry as to whether the decree of the court has been violated and of entering a definite finding thereof before initiating penal action against the condemner. Parties have not sought for to advance hearing or they were not ready for hearing are lame excuses when a party has complained before the court that a decree of injunction has been flouted by the opposite party. The learned Musniff is directed to conduct an enquiry over the matter and pass appropriate orders in accordance with law and dispose the proceedings as expeditiously as possible, at any rate, before the closing of the courts on mid summer vacation. With the above observations, the writ petition is closed. Handover a copy of the judgment to the counsel for the WPC.36722/09 4 petitioner on usual terms and send a copy of the judgment to the court concerned forthwith. S.S.SATHEESACHANDRAN JUDGE prp