IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 12TH FEBRUARY 2008 / 23RD MAGHA 1929 CRP.No. 334 of 2003() --------------------- AGAINST THE ORDER DATED 12/08/2002 IN EP. 161 /1987 IN OS.314/1986 of M.C.,PATHANAMTHITTA .................... REVN. PETITIONERS: DECREE HOLDERS/PLAINTIFFS: -------------------------------------------- 1. MADHAVAN PONNACHAN, PODIMANNIL, PAICKATTU VEEDU, MUTTATHUKONAM MURI, CHENNEER KARA VILLAGE. 2. REMANI, W/O. MADHAVAN PONNACHAN, PODIMANNIL, PAICKATTU VEEDU, MUTTATHUKONAM MURI, CHENNEER KARA VILLAGE. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: JUDGMENT DEBTORS/DEFENDANTS: ----------------------------------------- 1. NATHANIYEL SAMUEL, THANUMGATTIL, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE. 2. THIRUVANCHAN KOCHUCHERUKKAN, OOVUMKOTTU, THANUMGATTIL, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE. 3. KUNJUKUNJU NANU, SARADHA MADOM OF THANUMGATTIL, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE. 4. KUNJU RAMAN SREEDHARAN, VALLIKALAYIL, THANUMGATTIL, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE(DIED) ADDL.RESPONDENTS 5 TO 7 IMPLEADED. ADDL.R5.BHARATHY, W/O. KUNJURAMAN SREEDHARAN, VALLIKALAYIL, THANUMGATTIL, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE. ADDL.R6.UDAYABHANU, S/O KUNJURAMAN SREEDHARAN, VALLIKALAYIL, THANUMGATTIL, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE. ADDL.R7.SUJA SREEDHARAN, D/O. KUNJURAMAN SREEDHARAN, VALLIKALAYIL, THANUMGATTIL, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE. ADDITIONAL RESPONDENTS 5 TO 7 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT AS PER ORDER DATED 26.6.2007 AS PER ORDER IN I.A.419 OF 2006. BY ADVS. SRI.K.SASIKUMAR SRI.S.SAJU THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON THE SAMED AY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------------- C.R.P. NO. 334 OF 2003 ------------------------------------------- Dated this the 12th day of February, 2008 O R D E R This Civil Revision Petition is filed by the decree-holders challenging the order dated 12.8.2002 in E.P. No.161 of 1987 in O.S. No.314 of 1986 on the file of the Munsiff's Court, Pathanamthitta. The revision petitioners who are the plaintiffs filed the suit filed for permanent injunction. The suit was decreed in their favour as per judgment and decree dated 10.4.1987. On 17.12.1987, the decree-holders filed the execution petition complaining that the judgment debtors trespassed into the plaint schedule property, demolished the eastern boundary, cut and removed the trees and caused loss to them after the passing of the decree. The decree-holders thus sought arrest and detention of the judgment debtors and realisation of compensation from the judgment debtors for the loss caused to them. The execution court by order dated 13.1.1993 held that judgment debtors 1 to 4 are liable to pay compensation of Rs.10,750/- to the decree-holders as they have disobeyed the decree passed against them and caused loss to the decree-holders. Out of the said C.R.P. NO. 334/2003 2 amount, Rs.2,750/- was fixed for reconstruction of the kayyala and Rs.8000/- was fixed as compensation for the loss caused on account of cutting and removing the trees. 2. Challenging the above order, the judgment debtors filed C.R.P. No.935 of 1993 and this Court as per order dated 9.12.1994 directed the execution court to dispose of the matter afresh in the light of the observations made in the order in accordance with law, after giving the parties an opportunity to substantiate their respective contentions. The decree-holders filed a petition under Order 21 Rule 32 C.P.C. alleging that the judgment debtors violated the decree of injunction by demolishing the kayyala and also by cutting down the trees standing in the decree schedule property. During the pendency of the execution petition after remand, the judgment debtors reconstructed the kayyala and thus obeyed the order of the court to restore the demolished portion of the kayyala of the decree schedule property. The court below also observed that in view of the order passed in C.R.P. No.935 of 1993, the decree-holders are not entitled to realise any compensation. The court below further held that violation of trespass and demolition of kayyala have been made good by reconstruction of the eastern kayyala in the decree scheduled property and that there is no ground to proceed with the execution petition. The C.R.P. NO. 334/2003 3 execution petition was, therefore, dismissed finding that the decree has been executed. 3. The request of the revision petitioners/decree holders is not for compensation as a measure of damages under Order 21 Rule 32(1 and 3) C.P.C. Sub-rule (3) of Rule 32 mandates that where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months, if the judgment debtor has not obeyed the decree and the decree -holder has applied to have the attached property sold, such property may be sold and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance, if any, to the judgment debtor on his application. 4. The above provision is intended for payment of compensation in a case where the judgment debtor has not obeyed the decree and the decree-holder has applied for sale of the attached property. Here, the execution petition was filed for proceeding against the judgment debtors for violation of the decree under two heads; (i) for demolition of the kayyala and (ii) for cutting down the trees and thus causing loss to the decree-holders. Order 21 Rule 32 envisages a situation where the execution court may award to the decree-holder such compensation if the C.R.P. NO. 334/2003 4 decree is not obeyed. Admittedly, the decree-holder is not seeking compensation for non-observation of the decree, as during the pendency of the execution petition, the judgment debtors had reconstructed the kayyala and thus obeyed the decree in part. A portion of the decree still remains to be complied with. The prayer of the decree-holders is not for compensation for violation of the decree, but for the loss caused to them on account of cutting and removing the trees. The execution court in the previous order passed on merits fixed Rs.8000/- as compensation for the loss caused to the decree-holders as a result of cutting down the trees. 5. Learned counsel appearing for the judgment debtors/respondents contended that there is no evidence to prove that the judgment debtors caused loss to the decree-holders by cutting down the trees. According to the counsel, there is also no evidence to prove the quantum of compensation to be awarded for the loss caused to them. The execution court is empowered to make good the loss caused to the decree-holders by violation of the decree. The execution court has also got the duty to restore the decree schedule property to its original position. In this case, violation of the decree is not only by demolishing a portion of the kayyala but also by cutting down the trees standing in the property. C.R.P. NO. 334/2003 5 6. What exactly is the loss caused to the decree-holders is a matter for adjudication by the execution court. The execution court failed to make an enquiry stating that as per the order in C.R.P. No.935 of 1993, the decree-holders are not entitled to realise any amount by way of compensation. In the facts and circumstances of the case, I am of the view that the contention raised by the decree-holders that the judgment debtors are liable to re-coupe the loss caused to them is a matter which requires reconsideration by the court below. The execution court shall consider the contentions raised by both sides and pass appropriate orders. In the result, the Civil Revision Petition is allowed. The order under challenge is set aside. The execution court is directed to pass appropriate orders in the matter within a period of four months from the date of receipt of a copy of this order. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO. 334/2003 6 HAURN-UL-RASHID, J. C.R.P. NO. 334/2003 O R D E R 12TH FEBRUARY, 2008