IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 CRP.No. 180 of 2011() --------------------- AGAINST THE ORDER DATED 04/03/2011 IN EP 15/2010 IN OS.268/2004 of MUNSIFF COURT, KANJIRAPPALLY .................... REVN. PETITIONER/JUDGMENT DEBTOR ------------------------------------------------- GOPINADHAN,S/O.NARAYANAN , AGED 56 YEARS,KOTHANADIYIL HOUSE,KURUVMOOZHY BHAGAM, KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK. BY ADV. SRI.P.C.HARIDAS RESPONDENT/DECREE HOLDER ------------------------------------- VAISAKH VISHNU,S/O.VISHNU,AGED 22 YEARS, HARISREE HOUSE,,MUNDAKKAYAM VILLAGE AND KARA, KANJIRAPPALLY TALUK 686 513. BY ADV. SRI.LIJI.J.VADAKEDOM THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.180 of 2011 -------------------------------------- Dated this the 2nd day of December, 2011. ORDER This civil revision is in challenge of order dated 04.03.2011 in E.P.No.15 of 2010 in O.S.No.268 of 2004 of the court of learned Munsiff, Kanjirappally. Pursuant to a decree obtained by the respondent against petitioner and defendants 2 to 4, the former filed E.P.No.15 of 2010 under Order XXI, Rule 32 of the Code of Civil Procedure (for short, “the Code”) alleging that petitioner trespassed into the building in the suit property on 10.05.2009 in violation of the decree. Petitioner, in response contended that even as on the date of suit and decree, he was in possession of the building thereon, residing in the said building. Both sides adduced evidence in support of their respective contentions. Executing court found that decree dated 27.02.2006 prevented petitioner from trespassing into the suit property which indicated that he has no possession of suit property as on date of decree, accepted the case of respondent and directed petitioner to vacate the building in question within one month of the order failing which on the application of respondent, the execution petition will stand revived for enforcement of decree by detention of petitioner in the civil prison and attachment of his property. 2. It is contended by learned counsel for petitioner that there is no decree for prohibitory injunction against petitioner, nor asked for by the respondent in the suit and that there is sufficient evidence to show that even before the decree, petitioner was in possession of the building in question and CRP No.180/2011 2 residing there. Learned counsel has invited my attention to the evidence tendered before the executing court. 3. Learned counsel for respondent in response contended that trial court has clearly found that respondent was in possession of the suit property including the building as on the date of suit, was not inclined to accept the case of petitioner regarding his possession of the building in question based on the report of the Advocate Commissioner, has granted relief against petitioner also and that was confirmed by the appellate court in the appeal preferred by the petitioner. It is also the contention of respondent that the executing court cannot go behind the decree. 4. The jurisdiction of the executing court is well defined, that it cannot go behind the decree though, in situations where the decree is ambiguous it is open to the executing court to look into the pleadings and other materials on record. In this case relief prayed for by the respondent as against petitioner and defendants 2 to 4 (I am told that defendants 2 and 3 are the wives of petitioner and 4th defendant is the father of 3rd defendant) is a decree for prohibitory injunction restraining defendants 2 to 4 from trespassing into the property, committing waste, forcibly occupying the building therein or committing mischief in the said property. It is also seen that relief was sought against petitioner in the form of injunction restraining him from causing obstruction to the respondent taking yield from the property, inducting third parties into possession of the building in the suit property or, in any manner interfering with the possession of respondent in the suit property (which takes in the building also). CRP No.180/2011 3 Before the trial court petitioner contended that he is in possession of the property though he happened to execute an assignment deed (marked Ext.A1 in the trial court) in favour of respondent under certain circumstances. Petitioner relied on the report of Advocate Commissioner and other evidence he had let in before the trial court to substantiate his possession of the property and residence in the building in question. Referring to that evidence, trial court held in paragraph 19 of its judgment that assignment deed executed by petitioner in favour of the respondent (marked Ext.A1 in the trial court) revealed that possession of the property was transferred to the respondent and that petitioner has not adduced any independent evidence that in spite of execution of that assignment deed he retained possession of the property. Referring to Ext.C1, report (where it is stated in clause (iv) that only petitioner is staying in the building in question, neither defendants 2 to 4 nor their articles were seen in the said building and on questioning petitioner he stated that he alone is staying in the building. The Advocate Commissioner also referred to his finding certain utensils and coats in the building in question). Trial court held that the Commissioner, upon local inspection of property will not be able to say and decide on the question of possession and that the report does not give any indication to the effect that petitioner retained control over the building. Trial court was therefore disinclined to accept the statement in the report of the Advocate Commissioner that petitioner was staying in the building in question. Trial court also observed that evidence adduced did not prove that petitioner has possession of the schedule property including building. On that premise, trial court granted a decree CRP No.180/2011 4 restraining the “defendants” (including petitioner) by a decree of permanent prohibitory injunction from trespassing into the suit property and committing waste therein or from doing anything which obstructed the peaceful enjoyment of the respondent in the suit property. 5. Petitioner challenged that judgment and decree in an appeal – A.S.No.76 of 2006. Learned Sub Judge dismissed that appeal as per judgment dated 29.02.2008. There again reference was made to the contention of petitioner that he is staying in the building in question. In paragraph 9 of the judgment, appellate court observed that in order to prove that petitioner has possession of the suit property reliance was made on the report of the Advocate Commissioner, it is true that Advocate Commissioner stated in his report that at the time of inspection petitioner was seen in the building in question but, presence of petitioner in the building is not a ground to hold that he had exclusive possession of the property even after execution of the assignment deed in favour of the respondent. The appellate court concluded that petitioner failed to prove his possession of the property and building. Appellate court proceeded to say that possession was delivered to the respondent as per the assignment deed executed by petitioner and he cannot claim exclusive possession of the same and that evidence on record proved that respondent has exclusive possession and right over the suit property. 6. It is true that in the plaint, relief of injunction against trespass is claimed against defendants 2 to 4. But the further relief claimed in the plaint is injunction against petitioner and other defendants interfering with possession CRP No.180/2011 5 and enjoyment of respondent in the suit property (which included the building). It is in the above circumstances that decree was granted in favour of the respondent. In that situation, executing court cannot go behind the decree and say that findings are not correct and that petitioner was in possession or even occupation of the building in question either at the time of suit or decree and hence the decree is not executable. 7. Now the question is whether on 10.05.2009 petitioner trespassed into the building in question. As I stated that the decree shows that even as on the date of decree petitioner had no possession or occupation of the building in question. Therefore, his occupation as now seen can only be after the decree was passed. If that be so it amounts to violation of the decree and petitioner is liable to be evicted from the building in question in execution of the decree. In that view of the matter interference with the order under challenge is not required. Civil revision is dismissed. But petitioner is granted a month’s time from the date notified for delivery of a copy of this order to vacate the building failing which consequences directed by the executing court will follow. I.A.No.887 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks