IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).NO. 21370 OF 2010(O) ------------------------------------------ OS.429/1989 OF PRINCIPAL MUNSIFF'S COURT, KOZHIKODE-II .................... PETITIONER(S): ----------------------- M.P.AAROCHI,D/O.KANNAN,MUDUVANPILAKKAL, PANTHEERANKAVE,OLAVANNA AMSOM, KAILAMADAM DESOM, KOZHIKODE. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): --------------------------- 1. VILASINI,D/O.JANAKI AMMA, KARINGANCHERI HOUSE,OLAVANNA VILLAGE, KAILAMADAM DESOM, KOZHIKODE TALUK. 2. GEETHA,D/O. JANAKI AMMA, DO. DO. 3. RAJINI,D/O. JANAKI AMMA, DO. DO. 4. ANITHA,D/O. JANAKI AMMA, DO. DO. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.21370 of 2010 ==================================== Dated this the 9th day of July, 2010 J U D G M E N T Apprehending trespass at the instance of petitioner, respondents filed O.S. No.429 of 1989 in the court of learned Principal Munsiff-II, Kozhikode and prayed for a decree for prohibitory injunction against such trespass into the suit property. Claiming title petitioner sought for a decree for recovery of possession by filing O.S. No.438 of 1989 in the same court. Learned Munsiff as per Ext.P1, common judgment dismissed O.S. No.438 of 1989 and granted a decree in O.S. No.429 of 1989 restraining petitioner from trespassing into the suit property. Challenge to the common judgment and decree at the instance of petitioner is now pending before this Court in the form of Second Appeals. While so respondents, alleging that petitioner wilfully violated the decree in O.S. No.429 of 1989 and demolished southern boundary fence filed E.P. No.129 of 2008. They also filed E.A. No.322 of 2008 to depute an Amin to fix southern boundary of suit property. That application was heard along with E.P. No.129 of 2008 and the executing court allowed execution petition directing that Advocate Commissioner could be deputed to fix W.P(C) No.21370 of 2010 -: 2 :- southern boundary of the property with reference to Ext.A3, plan and that Commissioner will supervise construction of fence. Respondents were permitted to construct fence along southern boundary based on Ext.A3, plan. In view of the said direction E.A. No.322 of 2008 to depute Amin was dismissed. Order of executing court is under challenge in this Writ Petition. Learned counsel for petitioner contended that in a decree for prohibitory injunction there is no scope for fixation of boundary as if in a decree for fixation of boundary on the strength of title. It is also contended that the matter is pending consideration in Second Appeals. According to the learned counsel executing court having found that there was no violation of the decree at the instance of petitioner, relief as now granted ought not have been granted. 2. No doubt, decree is one for prohibitory injunction to restrain petitioner from trespassing into the suit property involved in O.S. No.429 of 1989. When a decree is granted restraining petitioner from trespassing into the suit property it ensures right of respondents to have quiet enjoyment of the suit property. True, executing court found from evidence that fence on southern boundary of suit property which according to the respondent was demolished by petitioner after the decree was passed is not correct. Executing court referred to the report of W.P(C) No.21370 of 2010 -: 3 :- Advocate Commissioner and stated that fence had collapsed even during the trial of the case and when the Advocate Commissioner inspected the property there was only remanence of that fence and having regard to the facts and circumstances of the case executing court did not proceed against petitioner under Order XXI Rule 32 of the Code of Civil Procedure (for short, “the Code”). 3. Order XXI Rule 32 of the Code speaks about proceeding against judgment debtor who has wilfully violated the decree. Sub-rule (5) of that Rule states that where a decree for specific performance of a contract or for an injunction has not been obeyed the court may in lieu of or in addition to all or any of the processes referred to in the forgoing sub-rules direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the court at the cost of the judgment debtor. Profitable reference can be made to Sec.51(e) of the Code. That provision says that court has the power to execute the decree “in such other manner as the nature of the relief granted may require”. I stated that decree for injunction ensures quiet enjoyment of the suit property by the respondents. As it is reported whether it be at the instance of petitioner or not, there is no fence on southern boundary of the suit property. If there is no fence on southern boundary there is W.P(C) No.21370 of 2010 -: 4 :- likelihood of respondents' enjoyment of the suit property being affected adversely. Hence it is well within the power of executing court invoking invoke Order XXI Rule 32(5) and Sec.51(e) of the Code to depute an Officer of the court and ensure that fence is constructed on the boundary of property in respect of which relief was granted. There is nothing illegal in the executing court allowing respondents to put up fence on southern boundary of suit property in the presence and supervision of an Advocate Commissioner. Putting up the fence as aforesaid is in consequence of the decree for prohibitory injunction and cannot in any way affect right of petitioner to raise his contentions in the pending Second Appeals. It is also not as if boundary is fixed as if in a decree for fixation of boundary on title. Construction of fence is only for the purpose of quiet enjoyment of suit property regarding which respondents are given a decree for prohibitory injunction. Writ Petition is closed with above observations. THOMAS P. JOSEPH, JUDGE. vsv