IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 CRP.No. 242 of 2011() -------------------------------- (AGAINST ORDER IN EP 150/08 IN OS.50/1995 of MUNSIFF COURT, KODUNGALLUR) .................... REVN. PETITIONER(S)/PETITIONER/ DECREE HOLDER ------------------------------------------------------------------------------- BALAKRISHNA, S/O.VELAMBATH KITTU, CHENTRAPPINNI VILLAGE, DESOM, KODUNGALLUR TALUK, THRISSUR DIST. BY ADV. SRI.K.S.BHARATHAN RESPONDENT(S): --------------------------- 1. RAVEENDRAN, S/O.VELAMBATH KUNJAYAPPAN, CHENTRAPPINNI VILLAGE DESOM,, KODUNGALLUR TALUK, THRISSUR DIST.PIN- 695 013 2. PRAKASAN, S/O.KOLLARA CHATHUNNI, MANAGER, CHENTRAPPINNI HIGHER SECONDARY SCHOOL, CHENTRAPPINNI VILLAGE DESOM, KODUNGALLUR, THRISSUR DIST.PIN-695 013 R1 BY ADV. SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA SMT.ANNIE JACOB SRI.P.N.APPUKUTTAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== C.R.P. No.242 of 2011 ==================================== Dated this the 13th day of October, 2011 O R D E R Respondents appear through counsel. 2. Petitioner-decree holder challenges the order passed by the learned Munsiff, Kodungallur in E.P. No.150 of 2008 in O.S. No.50 of 1995. Petitioner obtained an ex parte decree against the respondents for injunction against filling up of a pond and construction of compound walls blocking the way. Alleging that the decree was violated by filling up the pond and constructing compound walls obstructing the way, petitioner filed E.P. No.150 of 2008. I am told that first respondent-first judgment debtor did not file counter but second respondent-second judgment debtor filed counter denying the various allegations contending that the pond got filled up in due course of time due to natural process and at any rate he had purchased property for the School as its Manager, he thereafter resigned as Manager and that he has not violated the decree. Executing Court recorded evidence and came to the conclusion that there is no material on record to show that C.R.P. No.242 of 2011 -: 2 :- the second respondent had violated the decree and consequently the execution petition was dismissed. 3. Learned counsel for petitioner contended that the executing court has overlooked the evidence given by R.W.1. According to learned counsel evidence of R.W.1 cited by second respondent as his witness contains a positive statement that the compound walls were constructed during the time second respondent was the Manager of the school. According to the learned counsel violation of decree of this nature cannot be seen lightly. 4. Learned counsel for respondents supported the findings of the learned Munsiff. 5. Learned counsel for petitioner has given me a copy of E.P. No.150 of 1998. I find that the relief sought for in that execution petition is only to prosecute the second respondent by his detention and attachment and sale of his property. 6. Rule 32(1) of Order XXI of the Code of Civil Procedure (for short, “the Code”) dealing with enforcement of a decree for specific performance of a contract, restitution of conjugal rights or injunction states that where a party against whom a decree was passed had opportunity of obeying the decree and has wilfully C.R.P. No.242 of 2011 -: 3 :- failed to obey it, “the decree may be enforced (in the case of a decree for restitution of conjugal rights by the attachment of his property or in the case of a decree for specific performance of a contract or for an injunction) by his detention in the civil prison or by the attachment of his property or by both”. 7. In other words, detention of judgment debtor or attachment and sale of his property is not for punishing him for violation but to enforce the decree (for injunction). This is clear from the further sub-rules of Rule 32 of Order XXI of the Code as well and that has been clarified by this court in Narayani v. Thankappan (1991 [2] KLT 704) where it is held that Rule 32 is not merely punitive and that the provision can be invoked only for the enforcement of a decree. It is also held that if violation or disobedience of a decree for injunction is sought to be visited with punitive consequences, the only remedy available in law, as matters stand at present, is to initiate proceedings under the law of contempt of court against the person concerned. 8. In so far as petitioner has not sought for enforcement of the decree, question of punishing the second respondent even if it is assumed that he has violated the decree in the way prayed for in the execution petition under Rule 32 of Order XXI of the C.R.P. No.242 of 2011 -: 4 :- Code does not arise. Therefore the execution petition was not maintainable. Whatever findings that executing court in the circumstances had made in the impugned order will stand vacated since I found that the execution petition is not maintainable. I make it clear that it is open to the petitioner to proceed in the matter, if decree is required to be enforced against any of the respondents as provided under law. Civil Revision Petition is disposed of with the above observations. THOMAS P. JOSEPH, JUDGE. vsv