IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 7266 of 2009(O) ------------------------- AGAINST THE ORDER IN EP 5/2006 IN OS.289/2001 of MUNSIFF-MAGISTRATE COURT,PONNANI .................... PETITIONER: --------------- KOTTUPRAMBIL BEEPATHU, AGED 57 YEARS, D/O.LATE CHERIYA KUNHAHAMMAD, KUTTIPALA AMSOM, DESOM, VATTAMKULAM POST, MALAPPURAM DISTRICT. BY ADV. MR. C.KHALID MR. N.GOPINATHA PANICKER MR. R.O.MUHAMED SHEMEEM MR. T.P.SAJID MS. M.A.SULFIA MS .NAMITHA JYOTHISH MR. K.P.MOHAMED SHAFI RESPONDENT: --------------- PALAKKAL MUHAMMED HAJI, AGED 87 YERS, S/O.KOYAKUTTY, PALAKKAL VEEDU, NEDIYAD VILLAGE, POST VATTAMKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- W.P(C).No.7266 OF 2009 -------------------------------------------------- Dated this the 11th day of March, 2009 J U D G M E N T Petitioner is the second defendant in O.S.289 of 2001 on the file of Munsiff Court, Ponnani. Respondent instituted the suit against five defendants for a permanent prohibitory injunction. Though the defendants appeared through a counsel, they did not file a written statement and subsequently they remained absent and an exparte decree was passed on 13.8.2002. As per the decree, the defendants, including petitioner herein, were restrained by a permanent prohibitory injunction from interfering with the peaceful enjoyment of the decree schedule property by respondent and his wife. Decree schedule property is 1.13 Ares in survey No.241/8 of Kuttippala village. The property admittedly originally belonged to the third wife of the respondent/decree holder. She executed registered settlement deed 1863 of 2000 in favour of the respondent. It is based on that the respondent instituted O.S.282 of 2001 and sought a decree for injunction restraining defendants from WP(C).7266/2009 2 interfering with his possession as well as the possession of his wife. The case of the writ petitioner is that seven days after the execution of the settlement deed, Aminumma, the wife of the respondent, had cancelled the settlement deed and therefore respondent did not derive any right in the property. Writ petitioner filed I.A.651 and I.A.652 of 2006; the former to condone the delay under section 5 of Limitation Act and the latter to set aside the exparte decree under Order IX Rule 13 of Code of Civil Procedure. Those petitions were filed after the respondent filed E.P.5 of 2006 under Order XXI Rule 32 of Code of Civil Procedure contending that the judgment debtors have disobeyed the decree and writ petitioner had broke open the lock and started residing in the building. The petitions to condone the delay and to set aside the exparte decree were dismissed on 26.2.2006. Writ petitioner neither filed an appeal against the original decree nor an appeal against the dismissal of I.A.652 of 2006. Instead, O.S.228 of 2006 was filed before the Munsiff Court, Ponnani seeking a decree for injunction restraining respondent from executing the decree contending that the decree was obtained fraudulently. No order of injunction was WP(C).7266/2009 3 obtained from the Court restraining execution of the decree. The petitioner being a party to the decree and bound by the decree, is not entitled to contend that the decree is not binding on her so long as the decree is in force. The executing Court as per Ext.P4 order dated 29.1.2009 found that judgment debtors are not entitled to disobey the decree and as writ petitioner was found residing in the building in the decree schedule property, directed her to vacate the house within three days making it clear that on her failure to obey the direction, she would be detained in civil prison for fifteen days. The order is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for the petitioner and learned counsel appearing for the respondent were heard. 3. Learned counsel appearing for petitioner pointed out that though an exparte decree was passed against the petitioner, she filed O.S.228 of 2006 a suit for injunction restraining execution of the decree on the contention that the decree was obtained fraudulently and when the suit is pending petitioner cannot be directed to vacate the building or detained in civil prison. Learned counsel pointed out that if ultimately petitioner WP(C).7266/2009 4 is to get a decree as sought for in O.S.228 of 2006 and meanwhile she has to be detained in civil prison or is to vacate the house, it would result in irreparable injury and inconvenience and therefore Ext.P4 order is to be quashed and Munsiff is to be directed to dispose the suit expeditiously. Learned counsel appearing for respondent pointed out that as the decree is binding on the petitioner, she cannot challenge the decree and so long as the decree is in force, she cannot disobey the decree and therefore there is no reason to interfere with Ext.P4 order. 4. When a decree is passed against the petitioner along with others, she is not entitled to disobey the decree so long as the decree is in force. Even though petitioner filed an application under Order IX Rule 13 of Code of Civil Procedure to set aside the exparte decree, when that petition was dismissed, she did not challenge it further and submitted to the order. The fact that she had filed O.S.228 of 2006 will not enable the petitioner to avoid the decree or to disobey the decree. It is submitted that even that suit is not for declaration of any right in the property and is only a suit for injunction based on the WP(C).7266/2009 5 contention that the decree was obtained fraudulently. Unless that fraud is established petitioner cannot get an order in her favour. In such circumstances I find no reason to interfere with Ext.P4 order which is perfectly legal. But considering the fact that petitioner is residing therein, she is granted three weeks time from today to vacate the building. If not, the executing Court is to proceed as provided in Ext.P4 order. Writ petition is dismissed accordingly. M. SASIDHARAN NAMBIAR, JUDGE okb