IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 22688 of 2009(O) -------------------------------------- OS.35/2008 of MUNSIFF COURT, VAIKOM .................... PETITIONER(S): ---------------------- SHAJI M.G.,S/O.LATE GOPALAN, MUTTATTIL,UDAYANAPURAM P.O., VAIKOM,DISTRICT KOTTAYAM. BY ADV. MR.K.REGHU KOTTAPPURAM RESPONDENT(S): ------------------------ 1. MOHANAN,S/O.MADHAVAN, CHATHENKERIL,THEKKEMURI,VADAKKEMURI VILLAGE, UDAYANAPURAM P.O.,VAIKOM,DISTRICT KOTTAYAM. 2. THANKAMANI,W/O.MOHANAN, CHATHENKERI,THEKKEMURI,VADAKKEMURI VILLAGE, UDAYANAPURAM P.O.,VAIKOM,DISTRICT KOTTAYAM. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 22688/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DATED 28/08/2008. EXT.P2: COPY OF THE SUIT VIDE O.S.35/2008. EXT.P3: COPY OF THE E.P. NO.171/09 DATED 08/04/2009 DATED 08/04/2009. EXT.P4: COPY OF THE E.A. NO.136/2009 DATED 23/06/2009. EXT.P5: COPY OF THE ORDER DATED 05/08/2009 IN E.P.171/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.22688 OF 2009 -------------------------- Dated this the 12th day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records of the case leading to Ext.P5 order and set aside the same. ii) Issue any other appropriate direction relating to and concerning Ext.P3 and P4 proceedings in the interest of justice. iii) Award cost of the petition. W.P.(C).No.22688 OF 2009 Page numbers 2. Petitioner is the 5th judgment debtor in E.P No.171/2009 in O.S No. 35 of 2008 on the file of the Munsiff Court, Vaikom. Suit was one for permanent prohibitory injunction and respondents are the decree holders / plaintiffs in the suit. The decree granted by the court was one for perpetual prohibitory injunction restraining the judgment debtors from obstructing the plaintiffs / decree holders from putting up a compound wall on the southern side of his property leaving open a pathway having the width of 3.5 feet. Pursuant to the decree, steps for execution were taken by the decree holder and receiving notice on that proceeding, the judgment debtors appeared and filed objections. After hearing both sides, negativing the objections, the court below appointed a commissioner to supervise the execution of the decree, ie, putting up of the compound wall. Ext.P5 is that order. Challenging the propriety W.P.(C).No.22688 OF 2009 Page numbers and correctness of that order, the 5th judgment debtor has filed this 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 / 5th judgment debtor submitted that after receipt of the notice in the writ petition, which was served by special messenger, the putting up of the wall continued and it was almost completed by Tuesday. The 5th judgment debtor along with other judgment debtors has already preferred an appeal against the decree which has been executed, and since there was a delay in filing the appeal it has not been received and admitted on the file of the appellate court so far. Enquiry on the delay petition is stated to be pending as notice thereof has not been served on the W.P.(C).No.22688 OF 2009 Page numbers respondents so far. Having regard to the facts and circumstances involved, I find, at this stage the only direction that can be passed is that in the event of the appeal being admitted after condoning the delay and if the decree granted in favour of the respondents / plaintiffs is reversed in the appeal, the judgment debtor will be entitled to move for demolition of the compound wall which has been put up on the basis of the decree. Subject to the observation made as above, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv