IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 CRP.No. 36 of 2010(B) ------------------------------- (E.P.NO.220/09 IN O.S. NO. 314/02 OF THE PRL. MUNSIFF, KOCHI) ........... PETITIONERS/JUDGMENT DEBTORS: ------------------------------------------------------ 1. SELVIN @ ELBIN, AGED 29 YEARS, S/O.LATE XAVIER, USAMPARAMBIL, C.C.II/266,FORT KOCHI, KOCHI-682 001. 2. MARIAM @ SHEEMOL, AGED 28 YEARS, W/O.SELVIN @ ELBIN OF -DO- -DO-. BY ADVS. MR.G.KRISHNAKUMAR, MR.SURAJ KRISHNA, MR.P.H. SHAJI, MR.MANOJ KUMAR MALLIA.M. RESPONDENTS/DECREE HOLDERS: ---------------------------------------------------- 1. XAVIER, AGED 54 YEARS, S/O.YOHANNAN, USAMPARAMBIL C.C.II/266, FORT KOCHI, KOCHI- 682 001 (DIED). 2. SHERLY,AGED 57 YEARS, W/O.XAVIER, RESIDING AT -DO- -DO-. BY ADV. MR. SAJEEV C.KRISHNAN (CAVEATOR). THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON 24/02/2010 PASSED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 36 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2010. ORDER In this petition, the petitioners, who are the judgment debtors call in question the order passed by the Munsiff's Court, Kochi in E.P. 220 of 2009 in O.S. 314 of 2002. The parties and facts are hereinafter referred to as they were available before the court below. 2. The fight seems to be one between mother and the son. The father, who was also in the fray is no more. It appears that the parents of the first respondent,who is the petitioner herein had instituted O.S. 314 of 2002 seeking a decree for mandatory and prohibitory injunction. A decree was passed in their favour. Subsequently the father of the first petitioner died. The decree is said to have been executed and the petitioner and his wife had to vacate the premises and the building. C.R.P.36/2010. 2 3. The complaint of the decree holder, who is the mother, is that the first floor of the building had been let out to tenants. Coming to know that they had vacated the premises, it is stated that the respondents before the court below had trespassed into the property and occupied the upstair portion of the building. The decree holder was also assaulted by them resulting in her getting admitted in General Hospital, Fort Kochi. A crime was registered with regard to that incident. The judgment debtors had no right to enter the premises or to occupy the building. Complaining of high handed action by the respondents, the decree holder sought appropriate reliefs. 4. The petition was resisted by the judgment debtors. They pointed out that the first decree holder is no more and the second decree holder cannot execute the decree which was a joint one. According to the judgment debtors after the death of the first decree holder and when the tenants vacated the upstair portion, the second decree holder, who is the mother wanted her son to stay by her side C.R.P.36/2010. 3 and she called them back. It is stated that due to the intervention and mediation of friends and relatives, the judgment debtors agreed to reside with the decree holder subject to certain conditions. An agreement was also entered into. The judgment debtors denied that they had forcibly entered the property and occupied the building. It was also contended that a portion of the decree is not executable and it is also submitted that even if the decree holder had any grievance in the occupation of the judgment debtors, she will have to recourse to another suit. 5. The court below took evidence in the matter and found that the grievance of the decree holder is genuine. Accordingly, the court below deputed an Amin to execute the decree by removing the judgment debtors, if need be, with police aid. It is the said order that is assailed in this revision. 6. Learned counsel appearing for the revision petitioners contended that the petition by the decree holder is misconceived and is not maintainable. One of the decree C.R.P.36/2010. 4 holders cannot execute the decree and also that even if the statements made by the decree holders are true, she has to resort to another suit to get relief in the matter. According to learned counsel, when in pursuance to the decree, they had earlier vacated the premises, the decree stood satisfied. Their subsequent entry into the property, even if by force, cannot enable the decree holder to execute the earlier decree. It is also contended that being a composite decree, a portion of it cannot be executed. It is contended that the claim made by the decree holder that the judgment debtors had occupied the upstair portion of the building by force is not correct. It is pursuant to an agreement between the judgment debtors and the decree holder that they had occupied the premises. It is also contended that there is no decree against them from entering the property subsequently. 7. None of the contentions raised above are tenable either on facts or in law. There is no law, which prohibits one of the decree holders to execute the decree. C.R.P.36/2010. 5 In the case on hand, the decree holders were the parents of the first petitioner herein. Father died and the mother has sought execution of the decree. Order XXI Rule 15 of the Code of Civil Procedure enables one of the joint decree holders to seek execution of the decree. 8. Equally untenable is the contention that after the judgment debtors had initially vacated the premises, the decree was satisfied that if there was any subsequent trespass by them will not enable the decree holder to execute the earlier decree. It is difficult to understand the contention. If one is to say that after going away from the property, soon thereafter if they again come back and occupy the property in violation of the decree granted by the court, to say that the earlier decree cannot be executed would appear to be very unconvincing. If one is to hold that each time violation takes place, the decree holder should have to institute a new suit for the above purpose, the whole exercise and the purpose becomes meaningless. That cannot be the law. The judgment debtors had vacated the C.R.P.36/2010. 6 property in pursuance of the decree. But that does not mean that they can thereafter forcibly occupy the building again. The decree holders had got a decree for both mandatory injunction and prohibitory injunction. The operative portion of the judgment reads as follows: “In the result suit decreed by directing the defendants to vacate the plaint schedule building within one month from the date of this judgment. Otherwise the plaintiffs are allowed to cause eviction of the defendants through the assistance of this court and to realise the expenses incurring for which from the defendants and their assets. The plaintiffs are allowed to realise damages for use and occupation of the building for the unauthorised occupation at the rate of Rs.200/- per month from one month after this judgment till the plaintiffs got vacant possession of the building from the defendants. Further the defendants and their men are restrained by means of permanent prohibitory injunction, restraining them from exerting money from the plaintiffs with police help and causing obstruction to the plaintiffs in mortgaging or C.R.P.36/2010. 7 renting out any portion of plaint schedule building and causing any obstruction to the plaintiffs in enjoying plaint schedule property in any manner. Plaintiffs are allowed to realise costs of the suit also from the defendants and their assets.” 9. A reading of the decree would show that the decree holders are entitled to remove the judgment debtors, who are none other than the petitioners herein, from the property and there is also prohibitory injunction against the judgment debtors from trespassing into the property or interfering with the peaceful life and enjoyment of the property by the decree holders. It is therefore incorrect to say that by vacating the premises, the decree stood satisfied and nothing survived thereafter. The question as to whether the petitioners herein are trespassers will be considered a little later. It is clear that the claim of the petitioners herein that since they vacated the premises, nothing remains in the decree and that if they subsequently occupied the building by force, the decree holder will have to file a separate suit cannot be accepted. C.R.P.36/2010. 8 10. Equally untenable is the contention regarding the non-executability of the composite decree. It is contended that the decree contained both mandatory and prohibitory injunction. Mandatory portion of the decree for injunction having been satisfied, it is contended that now the prohibitory portion of injunction cannot be executed now. 11. One can only say as it is too toll a claim. The issue is no longer res integra in view of the decision reported in Simon v. Athirampuzha Panchayat (2001(1) K.L.T. 242), wherein it was held as follows: “It is true that the decree granted by the trial court is for injunction. Nevertheless, it is clear from the reading of a decree that it consists of two independent parts; the 1st being for enforcement of the duties of the defendants through mandatory injunction and the other restraining him from doing certain things. While Art.135 provides a period of limitation of three years for enforcement of decree granting mandatory injunction, Art 136 provides for twelve years for executing other decrees. However, it is specifically stated in Art.136 that an application for enforcement or C.R.P.36/2010. 9 execution of a decree granting perpetual injunction shall not be subjected to any period of limitation. Thus, here is a case where the decree is composite; one part of which is subjected to limitation period of 3 years whereas the other is not subjected to any period of limitation at all and the petitioner can enforce the prohibitory injunction, whenever violation of that part takes place. The court below has not considered the question of enforcement of the prohibitory part of the injunction with reference to Art.136 of the Limitation Act. On the other hand it assumed that once the mandatory part becomes unenforceable the other part would be subjected to the same fate. This is clearly erroneous. Here is a case where the decree granted consists of two parts, which are divisible and not at all inter-dependent. Since the proviso to Art.136 does not provide for any limitation for enforcing the prohibitory part, the petitioner can very well maintain an execution petition with regard to that part of the decree.” In the light of the above decision, that contention also cannot hold good. C.R.P.36/2010. 10 12. Now I shall come to the contention regarding the occupation of premises claimed by the petitioners. According to the petitioners in this revision petition, after the death of the husband of the present decree holder, and when the tenants in the upstair portion of the building vacated it, the mother wanted her son to be besides her and solicited to come and stay with her. It is further claimed that there was an agreement between the mother and the petitioners setting down certain terms and conditions under which the petitioners are to occupy the premises. 13. Learned counsel appearing for the respondents pointed out that the agreements are concocted documents and the decree holder was forced to sign on them. The witnesses are stooges of the first petitioner and it was pointed out that in fact if petitioners' evidence is considered, there are two agreements, one of which is produced before the police station and the other before court. They are not identical. That by itself is sufficient to show that the claim that there was agreement is bogus. C.R.P.36/2010. 11 14. It is seen that the petitioners herein had produced Ext.B2 agreement said to have been entered into between the surviving decree holder and the petitioners herein. A reading of the agreement will itself show that it is bogus. Again, as rightly pointed out by the learned counsel for the respondents, it seems that the agreement produced before the police is not the agreement now produced before court. Even otherwise, it is rather inconceivable that the mother, who wants her son to reside with her would insist on an agreement being entered into before her son entered into the premises. The lower court has also noticed that at the time of the filing of the petition and thereafter the decree holder is staying with her relatives. It is also sad to note that the first petitioner tried to characterize his mother as mentally ill. It is shocking to notice that in his deposition he has stated that he could not succeed in his attempt to have her admitted in a mental hospital only due to the intervention of the public. C.R.P.36/2010. 12 It was considering the above facts that the court below has passed the impugned order. The order suffers from no infirmities whatsoever and it is in accordance with justice, equity and good conscience. The court below has risen to the occasion and has passed an effective order. No interference is called for with the order. The result is that this petition is dismissed with costs. P. BHAVADASAN, JUDGE sb.