IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 CRP.No.518 of 2008 (E) ---------------------------- AGAINST THE ORDER IN EP.50/2000 IN OS.145/1997 of MUNSIFF COURT,ATTINGAL .................... REVN. PETITIONER/1ST JUDGMENT DEBTOR/1ST DEFENDANT: ------------------------------------------------------------------------- ANANDAN, MOOLAVILA VEEDU MANAMPOOR VILLAGE, MANAMPOOR DESOM ATTINGAL BY ADV. SRI.R.ANILKUMAR SRI.P.BANI 1ST RESPONDENT/DECREE HOLDER/PLAINTIFF & 2ND & 3RD J.D/DEFENDANTS 2 AND 3: -------------------------------------------------------- 1. RAMAN BHAGEERATHI, KALLUVILA VEEDU CHEMCHERIKONAM, MANAMPOOR VILLAGE MANAMPOOR DESOM, KULAMUITTAM PO., PIN-695144. 2. UNNI, S/O.CHELLAPPAN, KUZHIVILA VEEDU MANAMPOOR VILLAGE DO.DO. 3. SURA, S/O.CHELLAPPAN KUZHIVILA VEEDU, MANAMPOOR VILLAGE, DO.DO. ADV. SMT.A.K.PREETHA FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ C. R. P. No.518 of 2008 ------------------------------------------------ Dated this the 22nd day of January, 2009 ORDER Notice was issued only to the first respondent/decree holder and that is served and the decree holder has entered appearance. Heard the counsel for the petitioner and the first respondent. 2. The petitioner is the first judgment debtor in O.S.145/1987 on the file of the Munsiff's Court, Attingal. It is submitted that a decree for permanent prohibitory injunction restraining the judgment debtors from trespassing into the property of decree holder and forming any road through her property was passed on 31/03/2000. On the allegation that in violation of the decree the judgment debtors trespassed upon the land and committed gross mischief and they did cut open a new road through the scheduled property, C. R. P. No.518 of 2008 -2- decree holder filed an execution petition in the court below seeking for restoration of her property in its original position. After considering the evidence adduced at the enquiry which consisted of oral evidence of PWs.1 to 3, RWs.1 to 6 and documentary evidence Exts.B1, C1 and C2, the court below came to the conclusion that the judgment debtors have disobeyed the decree as alleged; found that they are liable for wilful disobedience of the decree and held that before sending them into prison an opportunity must be given to them for obeying the decree. Accordingly, in the last paragraph of the impugned order the execution court directed as follows:- “In the result, the J.Ds are directed to restore the lie of the property in its original condition within one month. In case of any failure the plaintiff can execute the decree with the help of revenue and survey authorities by filing a petition before the court and can also realise the costs from the J.Ds and their assets”. C. R. P. No.518 of 2008 -3- 3. Judgment debtors 2 and 3 have not assailed the order impugned herein by the first judgment debtor. Apart from advancing argument before me that in relation to the lie of the property there was no commission report obtained on the trial side, counsel for the petitioner has no other argument to be advanced to assail the impugned order. From the documents produced before me it is not clear as to whether there was any commission report obtained on the trial side. However, it is after hearing the judgment debtors who were defendants in the suit and after getting convinced that there is no road through the scheduled property belonging to the respondent/plaintiff that the suit was decreed restraining the defendants/judgment debtors permanently from trespassing upon the scheduled property or from committing any act of waste therein or from cutting open a new C. R. P. No.518 of 2008 -4- pathway through the said property. Ext.C1 report obtained on the execution side shows that a road was formed through the scheduled property and it is after considering the entire evidence adduced on the execution side which consists of as many as three witnesses on the side of the decree holder and six witnesses on the side of the judgment debtors over and above the documentary evidence including Ext.C1 Commission Report that the court came to the conclusion that the judgment debtors have violated the decree of permanent prohibitory injunction and have cut a road through the scheduled property. There is absolutely nothing for the counsel to argue as to how and where the appreciation of evidence by the execution court has gone wrong and he does not canvas for the position that no road is cut through the scheduled property. When a road is cut through the scheduled property C. R. P. No.518 of 2008 -5- and which has been found on evidence that it was so cut by the judgment debtors in violation of the decree of permanent prohibitory injunction it is up to them to restore it to its original position and that is what is ordered by the court below. Time of one month was granted to the judgment debtors to restore the property into its original condition and the judgment debtors have not complied with the said direction though judgment debtors 2 and 3 have not even assailed the said order and only the first judgment debtor has filed this revision. There is absolutely no merit in this revision and this revision deserves only to be dismissed. 4. In the result, I dismiss this C.R.P. The court below shall take appropriate steps to have the scheduled property restored to its original condition enabling the plaintiff/ decree holder to get it done as directed in C. R. P. No.518 of 2008 -6- the impugned order and allowing the respondent/decree holder to realise the costs thus incurred from the judgment debtors. Communicate a copy of this order to the court below forthwith. The respondent is also allowed to produce a copy of this order in the court below at the earliest so as to enable the court below to have the decree executed without any further delay. Issue copy of this order to the counsel for the respondent urgently. K.P.BALACHANDRAN, JUDGE kns/-