IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 CRP.No. 234 of 2011() -------------------------------- AGAINST THE ORDER DATED 19/2/2011 IN EP.NO. 74/2009 IN OS.NO. 53/2002 of MUNSIFF-MAGISTRATE COURT,PATTAMBI .................... REVN. PETITIONER(S): PETITIONER/PLAINTIFF -------------------------------------------------------------------- MURALEEDHARA PANICKER, S/O.RAGHAVA PANICKER, KALARICKAL, MEZHATHOOR, MEZHATHOOR AMSOM DESOM, PALAKKAD DISTRICT, OTTAPALAM TALUK.PIN-679 534 BY ADV. SRI.P.RADHAKRISHNAN SRI.MADHU RADHAKRISHNAN RESPONDENT(S): DEFENDANT ---------------------------------------------- SADANANDAN, S/O.KUNHIRAMAN, NADACKAVIL, RESIDING AT PANDALANGATTIL, MEZHATHOOR AMSOM DESOM, PALAKKAD DISTRICT, OTTAPPALAM TALUK.PIN-679 534 BY ADV. SRI.P.K.MOHANAN (PALAKKAD) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.234 of 2011 -------------------------------------- Dated this the 18th day of August, 2011. ORDER Petitioner obtained an exparte decree in O.S.No.53 of 2002 of the court of learned Munsiff-Magistrate, Pattambi which restrained respondent and his men from causing obstruction to the petitioner using plaint B schedule way including plying of vehicles and also from erecting barbed wire fencing through B schedule way. Respondent was also restrained from changing the topography of plaint B schedule way. That decree has become final. Petitioner filed E.P.No.74 of 2009 invoking Order XXI Rule 32 (1) and (5) of the Code of Civil Procedure (for short, “the Code”) alleging that respondent has violated the decree and seeking appropriate relief in the matter. In the executing court an Advocate Commissioner inspected the property and submitted Exts.C1 and C2, report and sketch. The Advocate Commissioner reported that the width of plaint B schedule way varied at different points from nine feet to twelve feet. The Advocate Commissioner also noticed a compound wall on the west and a few steps towards the eastern portion of plaint B schedule. Executing court observed that there is nothing on record to show that respondent violated the decree and dismissed E.P.No.74 of 2009 which is under challenge. 2. Learned counsel has invited my attention to the decree schedule where the width of plaint B schedule way is stated as twelve feet and CRP No.234/2011 2 has contended that it is with respect to that way that petitioner was given a decree for prohibitory injunction. It is pointed out that when the decree is violated and constructions are made, petitioner is entitled to invoke Rule 32 (1) and (5) of Order XXI of the Code. Learned counsel for respondent contends that at the time the suit was filed, there was no house in the plaint A schedule or any wall on its southern boundary. The house and southern boundary wall of petitioner came into existence only after the decree was passed. It is further pointed out by learned counsel that having regard to Exts.C1and C2 there could be no contention that there was any trespass by the respondent into the plaint B schedule. 3. Sub-rule (1) of Rule 32 of Order XXI of the Code refers to detention of judgment debtor in civil prison or by attachment as referred to therein to compel him obey the decree when it is willfully disobeyed. Sub-rule (5) of Rule 32 refers to the procedure to be adopted when a decree for injunction “has not been obeyed” . In otherwords, for the said provision to apply it must be shown that the decree has not been obeyed. 4. True that in the plaint schedule and decree schedule width of plaint B schedule way is stated to be twelve feet and length as 90 feet. But it is not disputed that the Advocate Commissioner who inspected the property on the trial side reported that width of the way varied at different points from 9 to 12 feet. CRP No.234/2011 3 Therefore, it is clear that even as on the date of suit and the decree, plaint B schedule way was not having uniform width of twelve feet, as claimed by petitioner. 5. Now the question is whether there was any disobeyance to the decree by the respondent. The Advocate Commissioner in Exts.C1 and C2 (taken out in the executing court) has reported that the disputed plaint B schedule way has varied width at different points from 9 to 14 feet. The width of 14 feet was found towards the bell mouth of plaint B schedule at its western extremity. Towards the middle portion of plaint A schedule belonging to the petitioner, width of the disputed way is twelve feet. It is at that portion that the main gate of petitioner is constructed (according to the respondent, after the decree). Towards the eastern portion of plaint A schedule also there is a small gate (according to the respondent, constructed after the decree) where width of the plaint B schedule is given by the Advocate Commissioner in Exts.C1 and C2 as nine feet. But, it is seen that at the point where the width is shown as nine feet, in between the fence and wall bounding the property of respondent on its north there is a mango tree. Further west, at the portion where the width of the way is shown as twelve feet there is a coconut tree on the northern boundary of property of the respondent. Those trees must have been there at the time the decree was passed (at least, there is no case that those trees came into existence after the decree). Construction of fence and wall on the north of CRP No.234/2011 4 property of respondent is on the same line with the location of those trees. Therefore, prima facie it is difficult to accept the argument that at that portion of plaint B schedule there is any trespass into it (B schedule). 6. So far as the eastern portion of plaint B schedule is concerned, no doubt the Advocate Commissioner has reported about a few steps projecting into the said way. But, going by the sketch which the Advocate Commissioner has produced, that appears to be in the property of respondent. I must also bear in mind that in the plaint and decree schedule the length of plaint B schedule is given as 90 feet and the impugned step comes beyond the said length of 90 feet and therefore, those steps cannot be objectionable. Moreover, at that portion petitioner does not own any property since plaint A schedule does not extent to that portion. 7. So far as the western extremity of plaint B schedule is concerned, Exts.C1 and C2 show width of plaint B schedule as 15.10 feet (ie., more than the width referred to in the plaint and decree schedules). It is also to be noted that as aforesaid upto the eastern pillar of the gate of the petitioner put up towards middle of plaint A schedule, width of the disputed way is not less than 12 feet. In these circumstances I am not inclined to think that the executing court has gone wrong in holding that there was no disobeyance of the decree by the respondent. In that view of the matter challenge to the impugned order has to fail. CRP No.234/2011 5 8. It is argued by learned counsel that the view this Court has taken confirming the order of the executing court may not prejudice the right of petitioner to seek appropriate other reliefs by survey of the properties. I make it clear that if petitioner is entitled to any such right, it is open to him to enforce such right and as provided under law. With the above direction, civil revision is dismissed. I.A.No.1124 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks