IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 2ND DAY OF DECEMBER 2011/11TH AGRAHAYANA 1933 OP(C).No. 3386 of 2011 (O) -------------------------- OS.382/2004 of I ADDL.M.C., ERNAKULAM ..... PETITIONER: CORPORATION OF KOCHI REPRESENTED BY ITS SECRETARY, ERNAKULAM. BY ADVS.SRI.RAJU JOSEPH (SR.) SMT.P.SAREENA GEORGE RESPONDENTS: 1. FRANCIS THOTTAN, S/O.LONAPPAN, AGED 85 YEARS, THOTTAN HOUSE, OPP: ST. FRANCIS XAVIER'S CHURCH, SOUTH KALOOR, KOCHI-17. 2. G.C.D.A. REPRESENTED BY ITS SECRETARY, ERNAKULAM, COCHIN-18. R1 BY SRI.M.K.THANKAPPAN, R2 BY SRI.KKM.SHERIF SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2011 ALONG WITH OPC NO.3532/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN OPC 3386/2011 PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF THE JUDGMENT DT.29.3.2007 IN OS 382/04 BEFORE THE MUNSIFF COURT, ERNAKULAM. EXT.P2 A TRUE COPY OF THE JUDGMENT DT.7.4.2010 IN AS 94/2009 BEFORE THE ADDITIONAL DISTRICT COURT ERNAKULAM. EXT.P3 A TRUE COPY OF THE EP.167/2011 IN OS 382/04 FILED BY DECREE HOLDER. EXT.P4 A TRUE COPY OF THE WORK REPORT SUBMITTED BY THE DECREE HOLDER IN EP 167/11 IN OS 382/04 BEFORE MUNSIFF COURT, ERNAKULAM. EXT.P5 A TRUE COPY OF THE SKETCH DT.24.08.2011 SUBMITTED BY THE DECREE HOLDER IN EP 167/2011 IN OS 382/04 BEFORE MUNSIFF COURT, ERNAKULAM. EXT.P6 A HANDWRITTEN COPY OF OTHE ORDER DT.27.9.2011 PASSED IN EP 167/2011 IN OS 382/04 BEFORE MUNSIFF COURT, ERNAKULAM. EXT.P7 A TRUE COPOY OF THE COMPLAINT DT.12.10.2011 SUBMITTED BY THE CHURCH. EXT.P8(a) TRUE COPIES OF PHOTOGRAPHS SHOWING THE HOLES CREATED (b)&(c) ON THE RETAINING WALL OF THE DRAINAGE SEENA CANAL ON THE WESTERN SIDE. EXT.P9 A TRUE COPY OF THE STOP MEMO AND SHOW CAUSE NOTICE DT.12.10.2011 UNDER SECTION 406 (1) AND (2) OF KM ACT. EXT.P10 A TRUE COPY OF PROSECUTION PETITION DT.14.10.2011 IN EP.167/2011. EXT.P11 A TRUE COPY OF THE PETITION FOR REVIEWING THE ORDER DT. 27.09.2011 IN EP 167/2011 IN OS. 382/04 BEFORE MUNSIFF COURT, ERNAKULAM. RESPONDENTS' EXHIBITS: NIL. /TRUE COPY/ K.Hema, J. ------------------------------------------- O.P.(C) Nos. 3386 & 3532 of 2011 -------------------------------------------- Dated this 2nd day of December, 2011 JUDGMENT Petitioner is the Corporation of Kochi, represented by its Secretary, which is the second Judgment Debtor (JD2) in an Execution Petition. It was filed by first respondent for executing a decree passed by Additional District Court. The decree reads a follows: “a) The defendants 1 and 2 are restrained by a perpetual prohibitory injunction from reducing the width of the B schedule at any point and making any construction whatsoever obliterating its lie and nature. b) The defendants 1 and 2 are directed to restore the width of the B schedule by removing the encroachment made in the nature of construction within 2 months, failing which the plaintiff is allowed to retain the width and nature of B schedule by removing the constructions at the cost of the defendants 1 and 2. The plaintiff is allowed to get costs of the suit from the defendants.” 2. The suit was filed by first respondent against Corporation of Kochi and the GCDA, since the width of B schedule pathway was reduced, while constructing a canal O.P.(C) Nos. 3386 & 3532 of 2011 2 which runs adjacent to plaint A schedule property. Since defendants failed to restore plaint B schedule way as decreed, an execution petition was filed by the first respondent as E.P.No.167/2011. Petitioner entered appearance before the Execution Court. In the execution petition, an order was passed by the Execution Court, which is marked as Ext.P6(a), in the following terms: “ In the result, following orders are passed: a) The alternative proposal put forward by the decree holder for executing the mandatory relief is hereby accepted. b) Issue execution warrant to Court Amin to execute the above work. c) The required men and materials for the work is to be provided by the decree holder. d) The representatives of the judgment debtors 1 and 2 are permitted to be present and witness the work. e) The Court Amin shall keep a running account of the whole expenses incurred for the execution of the work and after its completion shall file a detailed account statement before the court along with his report. O.P.(C) Nos. 3386 & 3532 of 2011 3 f) The Court Amin is given required sufficient police protection to execute the work. Give intimation to the concerned local SHO.” 3. According to petitioner, first respondent was allowed to carry out the work as per his work memo dated 28.4.2011 (Ext.P4), but copy of the work memo was not given to petitioner even though he had entered appearance in the execution petition. An order was passed by the Execution court by which first respondent was virtually allowed to construct a bridge over the canal. Objection was raised by the Church authorities, since the work was started by making holes on the wall of a Chapel which is situated by the side of the canal. The photographs are produced as Ext.P8 series. 4. Petitioner filed a petition to review the order passed in Ext.P6(a) on the ground that the said order was passed without hearing petitioner. Petitioner has strong objection to the manner in which the work is to be carried out at present by first respondent as per Ext.P4 and hence, a review petition was filed. But the Munsiff Court dismissed the review petition and the order passed in the review O.P.(C) Nos. 3386 & 3532 of 2011 4 petition is Ext.P18. Petitioner seeks to quash Exts.P6 and P12, which are the orders orders passed by the Execution Court. Ext.P6 and P12 are only the last portions of the orders passed. But, complete orders were later produced and marked as Exts.P6(a) and P18. 5. After filing of this original petition, first respondent filed another work memo, giving up the earlier proposal. Therefore, a petition was filed by petitioner to stay the work memo. But, without considering the objections raised by petitioner, orders were passed by the Execution Court and first respondent was allowed to carry out the work, as per the revised work memo, is the grievance. The said orders are also produced and marked as Exts.P16 and P17 dated 15.11.2011 and 22.11.2011 respectively. As per the said orders, work was allowed to be carried out from 22.11.2011 onwards and the case was posted for filing the report to 29.11.2011. The petitioner is aggrieved by the orders Exts.P16 and P17 also. But, according to petitioner, applications were filed to get the copy of those orders, but copies are not yet received. O.P.(C) Nos. 3386 & 3532 of 2011 5 6. The first respondent filed a counter affidavit. The second respondent GCDA also entered appearance. According to first respondent, it is not correct to say that petitioner had withdrawn the former work report sanctioned by the Execution Court, by which, he sought to restore the former width of the B schedule pathway to his property. Since the Church and local people raised objections to execute the decree by putting beams and slabs across the canal, a modified report was filed whereby, instead of putting beams across the canal and slabs over it, beams were to be installed only at the points to be widened, for restoring the way under a cantilever system. 7. It is also contended by first respondent that petitioner has no better suggestion to restore the width of the pathway. The execution is obstructed by petitioner in all possible means even at the instance of the Mayor who was one of the defendants in the suit, when he was a counsellor, it is contended. The Execution Court passed detailed orders on 15.11.2011 and 22.11.2011, but petitioner produced only the orders passed on the proceeding sheet, as Exts.P16 and O.P.(C) Nos. 3386 & 3532 of 2011 6 P17. The present proposal put forward by the first respondent will not, in any way, prejudice petitioner or general public, since the canal need not filled up as apprehended, for restoring the width of the way. The first respondent is the only person who is injuriously affected by the act of the authorities concerned in reducing the width of the way. 8. Heard both sides. Perused the documents. Learned counsel for petitioner submitted that Ext.P6(a) order was passed without hearing petitioner, even though petitioner had appeared in the execution proceedings. No notice was also given to him on the work memo Ext.P4, it is submitted. Without allowing petitioner to even raise objection to Ext.P4, court below passed an order to carry out the work, as per Ext.P4, it is submitted. Any order passed without hearing the affected party is unsustainable and liable to be set aside, it is argued. It is also submitted that if the work is carried out as per the work memo filed by first respondent, it will adversely affect the interest of public, since as per the decree, petitioner is bound to pay the cost O.P.(C) Nos. 3386 & 3532 of 2011 7 incurred for the work. 9. Learned counsel for first respondent strongly contended that there is absolutely no reason to interfere in any of the orders challenged (Ext.P6 (a), Ext.P18, Ext.P6 or Ext.P12), which are referred to in the original petition, for various reasons. Firstly, petitioner, who was the second defendant in the suit, did not file any written statement in the suit even though petitioner had entered appearance, it is pointed out. Without filing a written statement, he also participated in the trial and a considered order was passed on merit. In appeal, a decree was passed in favour of first respondent by which he was allowed to restore plaint B schedule pathway which was encroached upon by the Corporation, for construction of a canal. It is also pointed out that GCDA has no interest in any manner and they have already made it clear in the counter statement that the property is vested in the Corporation, as they have handed over possession of the canal to the petitioner, after construction. 10. It is also submitted that it is not correct to say O.P.(C) Nos. 3386 & 3532 of 2011 8 that petitioner was not given copy of the work memo Ext.P4. The execution petition was adjourned to different dates and petitioner was expected to be present in the court on such postings. It is not necessary that court must give separate notice of each posting to the petitioner whenever the case is adjourned. It is also submitted that notice of Ext.P4 was given to the counsel appearing for the Corporation. It was pointed out that Shri.M.A.Joseph and Smt.Sulekha were working in the same office and notice was received by Sri.M.A.Joseph, as revealed from records. 11. According to first respondent, petitioner is only raising technical objection that notice is not given. If they had any interest, they would have filed a written statement in the suit itself or filed an appeal against the appellate decree. The decree was passed as early as on 7.4.2010 and more than 1½ years have elapsed now and the Corporation has not so far filed any appeal before this Court, it is submitted. Even in the execution petition, no written objection was filed by petitioner prior to passing of Ext.P6 order, by which, first respondent's work memo was accepted O.P.(C) Nos. 3386 & 3532 of 2011 9 and work was allowed to be carried out, it is argued. 12. It was also submitted by learned counsel for first respondent that petitioner was not prepared to execute the decree at its cost and first respondent was forced to execute the decree at his cost and petitioner is now raising unfair and unreasonable objection to execution of the decree. The objection now raised will even amount to contempt of court, as stated in the objection filed by first respondent. Learned counsel for first respondent also argued that a perusal of Ext.P16 order in the review petition will make it abundantly clear that that all the contentions which the petitioner is raising is re-considered by the Execution Court, even though it was unnecessary to consider the same. Virtually, there is no sustainable objection from the side of petitioner and there is no reason to interfere in any of the impugned orders, it is submitted. 13. Learned counsel appearing for petitioner also argued that the orders Exts.P16 and P17 cannot even be looked into in this O.P., since the complete orders are not produced before this Court. The O.P. is not amended and no O.P.(C) Nos. 3386 & 3532 of 2011 10 prayer is made to quash or set aside Exts.P16 and P17. This Court cannot quash any order of the court below under Article 227 and powers are limited and Exts.P6(a) and P18 orders do not warrant interference by invoking Article 227, it is submitted. 14. On hearing both sides and on going through the records, I find that petitioner seeks to quash Exts.P6(a) and P18 orders (those orders are referred to as Exts.P6 and P12 in the O.P., but those are only portions of Ext.P6(a) and Ext.P18). Ext.P6(a) is an order passed in the E.P. as per which, petitioner is also allowed to execute the decree passed by first appellate court and Ext.P18 is an order, dismissing review petition. It is undisputed that the petitioner has not complied with the decree passed by the appellate court and restored the width of the 'B' schedule pathway even though more than 1½ years have elapsed, after the decree. It is also undisputed that petitioner has not filed any appeal challenging the decree passed in favour of first respondent. It is also undisputed that petitioner did not file written statement in the suit nor was there any objection O.P.(C) Nos. 3386 & 3532 of 2011 11 filed by petitioner in the execution petition prior to passing of Ext.P6 order. 15. In such circumstances, the court below was constrained to pass an order, by which, first respondent was allowed to execute the decree. The court below accepted the alternative proposal put forward by first respondent (decree-holder). Amin was directed to execute the work and an execution warrant was issued to the Amin. First respondent was directed to provide required ground material for the work. 16. The court below also appointed Commissioner to oversee the work and directed the Amin to keep a running account of all the expenses incurred for the execution of the work and file a detailed statement before the court along with the report. Amin was afforded required police protection to execute the work with intimation to concerned local SHO. It appears that for abundant caution, Execution Court has also allowed the petitioner as well as representatives of GCDA to be present and witness the work. O.P.(C) Nos. 3386 & 3532 of 2011 12 In such circumstances, it cannot be said that Ext.P6(a) is illegal or improper. 17. It is pertinent to note that court below has also done everything possible to ensure that the decree is executed in the presence of representatives of petitioner, the Corporation and GCDA, even though prior to the passing of Ext.P6(a) order, the Corporation did not file any objection nor did GCDA raise any claim over the relevant property. The Execution Court also heard GCDA. In Ext.P6(a) order, the Execution Court noted that counsel for petitioner did not turn up at the time of hearing. As pointed out by learned counsel for first respondent, it is not necessary for the court to give notice of every posting to a party, inviting their presence for hearing. 18. Ext.P6(a) order was passed after hearing the parties who were present at the time of hearing and it cannot be said that Ext.P6(a) was passed, without affording an opportunity to the petitioner. Had the petitioner required an opportunity of hearing, the counsel should have been present and sought for it. As noted by learned Munsiff, O.P.(C) Nos. 3386 & 3532 of 2011 13 counsel for petitioner did not turn up on the date of hearing even though GCDA entered appearance. 19. Admittedly, first respondent is not carrying out the work, as per the work memo Ext.P4. Revised work memo was filed and the work is sought to be carried out, in accordance with the revised work memo. Consequent to Exts.P6 and P12 orders, the court below also considered the possibility of continuation of work in accordance with another revised work memo filed by first respondent. Orders were also passed by the Execution Court (vide Exts.P16 and P17) allowing first respondent to carry out work and for restoration of pathway. Petitioner is aggrieved by the said order also. 20. But, this Court cannot interfere in the said orders, since the main prayer in the O.P. is not amended and no prayer in the O.P. to quash or set aside Ext.P16 or Ext.P17 orders. The orders produced in this O.P. as Exts.P16 and P17 are only the extract of the proceeding sheet and not the complete orders. The work which is now being carried is only as per orders passed by the court below which do not O.P.(C) Nos. 3386 & 3532 of 2011 14 call for any interference. 21. It is true that jurisdiction of this Court under Article 227 has to be exercised only sparingly and with circumspection. It is only in cases in which High Court finds a serious error of jurisdiction is committed by the court below or gross injustice has been done to any party that the court interferes by invoking Article 227. Ordinarily, this Court does not interfere in any or every matter and set aside each and every order passed by the court below. Considering all the relevant aspects, I find that there is absolutely no reason to interfere in Exts.P6(a) and P18 by invoking Article 227 of the Constitution. The court below has done only within its jurisdiction and rightly. 22. Learned counsel for petitioner submitted that this Court may leave open the petitioner's right to challenge Exts.P16 and P17 orders passed by the Execution Court. It is needless to say that if the petitioner has the right to challenge Exts.P16 and P17 orders as per law, petitioner will be at liberty to do so, in accordance with law. However, I make it clear that this order will not stand in the way of any O.P.(C) Nos. 3386 & 3532 of 2011 15 party approaching the appropriate court for any relief, in accordance with law. 23. O.P.(C)No.3386/2011 is also filed for quashing Ext.P6 (P6(a)) order. The same relief is sought for in O.P.(C) No. 3532/2011 also. In such circumstances, only one of the original petitions can be entertained and the other O.P. has to be dismissed for this reason itself. Therefore, one O.P. is dismissed on merit and the other as not maintainable. Both these petitions are dismissed. Sd/-K.HEMA, JUDGE. Krs. /True copy/ P.S to Judge O.P.(C) Nos. 3386 & 3532 of 2011 16 O.P.(C) Nos. 3386 & 3532 of 2011 17