IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 22578 of 2010(O) -------------------------- EP NO.372/2009 IN OS.2160/2001 of PRINCIPAL MUNSIFF COURT,ERNAKULAM .................... PETITIONER(S): --------------- ANTONY CORREYA, AGED 74, AMBATTU HOUSE, (MANAPPARAMBU), KANNACHANTHODE ROAD, COCHIN - 12, REPRESENTED BY HIS WIFE AND POWER OF ATTORNEY HOLDER JULIET CORREYA, AGED 68 YEARS, AMBATTU HOSUE (MANAPPARAMBU), KANNACHANTHODE ROAD, COCHI - 12. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): --------------- 1. REGINA LUIZ, W/O.LATE ANTONY LUIZ, AGED 57 YEARS, MANAPPARAMBU HOUSE, KANNACHANTHODE ROAD, KOCHI - 12. 2. SHELTON, S/O.ANTONY LUIS, AGED 35, MANAPPARAMBU HOSUE, KANNACHANTHODE RAOD, COCHI -12. 3. CELIA, W/O. SHELTON, AGED ABOUT 29, MANAPARAMBU HOSUE, KANNACHANTHODE ROAD, KOCHI - 12. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.22578 of 2010 -------------------------------------- Dated this the 21st day of July, 2010. JUDGMENT This Writ Petition is in challenge of order dated 07.04.2010 in E.P.No.372 of 2009 in O.S.No.2160 of 2001 of the court of learned Principal Munsiff, Ernakulam. Petitioner has in his favour a decree restraining respondents from obstructing him put up compound wall on the northern side of suit property and against respondents keeping any material in the said property. Alleging violation of decree in that respondents kept a heap of sand and some iron rods in the suit property, petitioner filed E.P.No.372 of 2009 and wanted respondents to be proceeded against as provided under Order XXI Rule 32 of the Code of Civil Procedure (for short, “the Code”). Evidence was recorded on the petition. Executing court found that there is no indication of any willful or deliberate violation of decree for injunction and refused to interfere in the matter. That order is under challenge in this Writ Petition. Learned counsel for petitioner contends that even on prior occasion similar disobedience of decree was committed by respondents. 2. I have gone through the copy of petition filed by petitioner where in paragraph No.3 it is alleged that respondents are willfully and deliberately violating the decree repeatedly. In paragraph No.4 it is stated that even during the pendency of execution petition, respondents collected loads of river sand and 15 sacks of metal boulders in the suit property. Advocate Commissioner who inspected the property on 19.01.2009 stated that without measuring the properties he is not in a position to say whether sand was WP(C) No.22578/2010 2 stacked in the property of the petitioner or the respondents. It also came out from the report of Advocate Commissioner that respondents are constructing a house in the small plot of land belonging to them. Executing court has stated that Advocate Commissioner noted a heap of sand at a height of one foot and seven inches on the side of residence of petitioner. There were 15 sacks of rubbles and a wooden stand used for bending iron rods, in between the two buildings. Executing court was not satisfied that there was any willful violation or disobedience of the decree and refused to interfere as provided under Order XXI Rule 32 of the Code. 3. Learned counsel for petitioner though contended that on earlier occasions there was disobedience of the decree,no evidence in that line is brought up except what petitioner has stated as PW1. Executing court has referred to continuing hostility between the neighbours and stated that respondents may have used small area available to them to stack materials which I do not find reason to interfere. I make it clear that this order shall not stand in the way of petitioner moving the executing court in case there is any violation or disobedience of decree in future which is required to be proceeded with under Order XXI Rule 32 of the Code. Writ Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks