IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 31689 of 2009(O) -------------------------- PETITIONERS: --------------- 1. SREELEKHA G., LEKHA BHAVAN, AYATHILCHERRY, VADAKKEVILA, KOLLAM. 2. UDAYAKUMAR G., -DO- -DO- BY ADV. MR.S.SANTHOSH KUMAR RESPONDENT: --------------- DR. N.REGHUDAS, REGHUMANDIRAM, VADAKKEVILA P.O., KOLLAM. ADV. MR.VINOY VARGHESE KALLUMOOTTILL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31689 of 2009(O) APPENDIX PETITIONERS' EXHIBITS: EXT.P1: PLAINT IN O.S.NO.417/07 BEFORE THE PRINCIPAL MUNSIFF COURT, KOLLAM. EXT.P2: JUDGMENT DATED 6.12.2007 IN O.S.NO.417/07 OF THE PRINCIPLA MUNSIFF COURT, KOLLAM. EXT.P3: I.A.NO.3789/08 IN O.S.NO.417/07 FILED BEFORE THE PRINCIPAL MUNSIFF COURT, KOLLAM. EXT.P4: COMMON ORDER DATED 23.6.2009 OF THE PRINCIPAL MUNSIFF COURT, KOLLAM. EXT.P5: APPEAL MEMORANDUM IN CMA.NO.85/2009 FILED BEFORE THE DISTRICT COURT, KOLLAM. EXT.P6: PETITION FOR CONDONING THE DELAY IN FILING THE CMA FILED BEFORE THE DISTRICT COURT, KOLLAM. EXT.P7: I.A.NO.270/09 IN CMA.NO.85/09 FILED BEFORE THE DISTRICT COURT, KOLLAM. EXT.P8: EXECUTION PETITION IN E.P.NO.210/08 FILED BEFORE THE MUNSIFF COURT, KOLLAM. EXT.P9: OBJECTED DATED 28.2.2009 FILED BY THE JUDGMENT DEBTORS IN E.P.NO.210/08 BEFORE THE MUNSIFF COURT, KOLLAM. EXT.P10: E.A.NO.498/2009 IN E.P.NO.210/08 FILED BEFORE THE MUNSIFF COURT, KOLLAM. EXT.P11: ORDER DATED 26.10.2009 IN E.A.NO.498/09 IN E.P.NO.210/08 OF THE MUNSIFF COURT, KOLLAM. EXT.P12: ORDER DATED 26.10.2009 IN E.P.NO.210/2008 IN O.S.NO.417/07 OF THE MUNSIFF COURT, KOLLAM. RESPONDENT'S EXHIBITS: NIL ... // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.31689 of 2009 - O --------------------------------- Dated this the 23rd day of November, 2009 J U D G M E N T Petitioners are the judgment debtors in O.S.No.417 of 2007 on the file of the Principal Munsiff Court, Kollam. The decree executed is one passed in a suit for perpetual prohibitory injunction and the respondent is the decree holder/plaintiff. The decree was passed exparte. Ext.P2 is the copy of the order. Admittedly, after dismissal of an application moved by the petitioner/defendant for setting aside the exparte decree under Order IX Rule 13 of the CPC an appeal preferred is pending before the District Court, Kollam. That appeal has been preferred with a petition to condone delay of 74 days. Meanwhile, respondent/decree holder has filed an execution petition as E.P.No.210 of 2008 and the execution court is continuing with the proceedings thereof. The judgment debtors on appearance in the execution proceedings moved an application to stay the proceedings. That application was declined vide P11 order. The executing court also ordered for executing the decree appointing W.P.(C).No.31689 of 2009 - O 2 an advocate commission for the construction of boundary wall in the plaint B schedule property. Ext.P12 is the copy of that order. Propriety and correctness of the above orders is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. From the facts and circumstances presented and the submissions made with reference to the exhibits tendered in the writ petition, it is seen, the decree executed is one passed in a suit for injunction. A decree for injunction is executable only in the manner and under the circumstances covered by order XXI Rule 32 of the CPC. That means, in the event of violation of a decree granted by the court, then alone the decree holder will be able to approach the court to seek execution of a decree of injunction. From the submissions made, it appears, on the basis of the decree of injunction the decree holder proceeds for putting up boundaries over his property. Order XXI Rule 32 of the CPC envisages of execution of decree for specific performance, for restitution of conjugal rights, or for an injunction for its W.P.(C).No.31689 of 2009 - O 3 enforcement by intervention of the court. How such an application is to be dealt with is also covered by the provisions under that rule. Irrespective of the fact that the judgment debtor remained exparte at the trial stage when a decree of injunction is sought to be prosecuted it can be done only in violation of the decree by the judgment debtor. It is the duty of the court to examine first whether there was violation of the decree of injunction. Enquiry thereof has to be conducted and then only the court can pass an order as the rule contemplates attachment of the property of the judgment debtor and also his arrest in the event of noncompliance of the decree of injunction. The question of executing the decree even if it is found necessary can be proceeded only after a finding is entered against the judgment debtor that he has violated the decree. Apparently no such finding is entered by the execution court. Ext.P12 order appointing commission is set aside. The execution court is directed to examine that question afresh and then proceed with the matter as covered by the provisions of Rule 32 of Order XXI of the CPC. W.P.(C).No.31689 of 2009 - O 4 4. It is submitted that the respondent has entered appearance in C.M.A.No.85 of 2009 on the file of the District Court, Kollam, wherein the delay petition is pending enquiry. The learned District Judge is directed to expedite the enquiry on the delay petition at the earliest and if delay is condoned, subject to terms or otherwise, dispose the C.M.A without delay. Writ petition disposed of as above. Send over a copy of the judgment to the learned District Judge and also to the execution court concerned. S.S.SATHEESACHANDRAN, JUDGE. bkn/-