IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 CRP.No. 745 of 2008() ----------------- EP.23/2006 IN OS.112/1998 OF MUNSIFF COURT, VAIKOM ................ REVISION PETITIONER / DECREE HOLDER / PLAINTIFF : ----------------------------------------------------------------------------------- T.JOSE MATHEW, THUDIYAMPLAKKAL HOUSE, KALLARA SOUTH P.O., KALLARA KARAYIL, KALLARA VILLAGE, VAIKOM TALUK. BY ADVS. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI. ANTONY C. ETTUKETTIL RESPONDENTS/JUDGMENT DEBTORS/DEFENDANTS : ------------------------------------------------------------------------------- 1. KORACHAN, S/O.KUNJU MATHAI, MADHAVAPPALLIL VEETTIL, KALLARA SOUTH P.O., KALLARA KARAYIL, KALLARA VILLAGE, VAIKOM TALUK. 2. P.C.JOSE, S/O.CHACKO, THARAYIL HOUSE, KALLARA SOUTH P.O., KALLARA KARAYIL, KALLARA VILLAGE, VAIKOM TALUK. 3. T.J.MATHEW, S/O.JOSEPH, THEKKEOONNU KALLUPARAMBIL, KALLARA SOUTH P.O., KALLARA KARAYIL, KALLARA VILLAGE, VAIKOM TALUK. 4. JOSEKUTTY, S/O.JOLLY PHILIP, MOOLAYIL HOUSE, KALLARA SOUTH P.O., KALLARA KARAYIL, KALLARA VILLAGE, VAIKOM TALUK. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.745 of 2008 -------------------------------------- Dated this the 14th day of December, 2011. ORDER Order dated 08.04.2008 passed by the learned Munsiff, Vaikom in E.P.No.23 of 2006 in O.S.No.112 of 1998 is under challenge. Though the civil revision was filed as early as on 28.08.2008 after crossing various barriers such as curing defects, etc. the matter comes before me for admission this day. 2. On the strength of a decree obtained against the 1st respondent and others petitioner filed E.P.No.23 of 2006 alleging that violating the decree for prohibitory injunction respondents trespassed into the suit property, destroyed the concrete pillars on the boundary of the said property and installed stumps in the said property. Petitioner wanted the executing court to direct the respondents remove those stumps and restore the pillars. Respondents denied the allegation. They claimed that they have not violated the decree. Parties adduced evidence. Executing court came to the conclusion that the evidence on record is not sufficient to show that there was any violation of the decree at the hands of the respondents. Consequently the execution petition was dismissed by the impugned order. 3. It is contended by learned counsel that petitioner is entitled to execute the decree and that aspect of the matter was not taken into account by the executing court. It is also contended that there is sufficient evidence to show CRP No.745/2008 2 that respondents committed mischief violating the decree. 4. Respondents 2 to 4 are not parties to the decree. Only the 1st respondent is a party to the decree. Concededly decree was obtained against 1st respondent and others not as representing the public with leave and publication under Order I, Rule 8 of the Code of Civil Procedure (for short, “the Code”). Therefore, the decree can bind only the party to it presently, the 1st respondent unless it is shown that respondents 2 to 4 have acted under the 1st respondent. 5. Petitioner/decree holder gave evidence as PW1. He is not a witness to the alleged incident. He admitted that the Kallara Grama Panchayat had issued notice to him (marked Ext.A2 in the executing court) alleging that he encroached into the Panchayat road and requiring him to remove the encroachment. He also admitted that boundary stones and stumps bearing letters 'K.P' were installed by the Kallara Panchayat. PW2 is the wife of petitioner who claimed to have witnessed the incident. Two other witnesses (PWs 3 and 5) also claim to have witnessed the incident. PW4 is the Advocate Commissioner who prepared Exts.C1 and C1(a), report and sketch. 6. Respondents examined DWs 1 to 3 and marked Exts.B1 to B4, series and X1 to X8. DW1 is the Secretary of Kallara Grama Panchayat. He proved X1 to X8. He claimed that proceedings were initiated by the said Panchayat against petitioner (for alleged) encroachment into the Panchayat CRP No.745/2008 3 road and requiring petitioner to remove the encroachment. 2nd respondent gave evidence as DW2 and denied that he had any role in the alleged violation of decree. DW3 is the Advocate Commissioner who proved Exs.B4 and B4(a), report and sketch. The alleged incident was on 18.12.2005. Petitioner filed E.P.No. 23 of 2006 on 13.01.2006. It came out in evidence that petitioner filed O.P.No.30963 of 2005 in this Court on 01.11.2005 alleging that respondents 2 to 5 therein trespassed into his property and hence sought for a direction to the Grama Panchayat to take action for fixation of boundary of the road. Exts.X1 to X8 show that the Panchayat initiated action against petitioner for encroachment into the Panchayat road. Executing court also pointed out that Exts.X1 to X4 show that concrete pillars were removed by the Panchayat and (not by any of the respondents as petitioner alleged). 7. Executing court has held that there is no acceptable evidence to show that either respondents 2 to 4 or the 1st respondent is involved in the alleged act. On the other hand evidence indicated that concrete pillars installed by petitioner could have been removed at the instance of the Local Grama Panchayat. It is in that view of the matter that executing court refused to proceed against respondents as prayed for in E.P.No.23 of 2006 . That finding is based on a proper appreciation of evidence and other circumstances which does not call for interference in exercise of the power under Section 115 of the Code. CRP No.745/2008 4 Civil revision is dismissed. It is made clear that this order will not stand in the way of petitioner enforcing his other right if any under the decree as against person concerned and as provided under law. THOMAS P.JOSEPH, Judge. cks