IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 RSA.No. 1209 of 2008() ---------------------- AS.93/2008 of II ADDL.DISTRICT COURT,ERNAKULAM OS.1356/2001 of PRL. MUNSIFF'S COURT,ERNAKULAM .................... APPELLANTS/JUDGMENT DEBTORS/DEFENDANTS 1 TO 4:- 1. VALSALA, D/O.LATE VARGHESE, KADAVIL HOUSE, SYRIAN CHURCH ROAD, ERNAKULAM, KOCHI-31. 2. JOHN, S/O.LATE VARGHESE, KADAVIL HOUSE SYRIAN CHURCH ROAD, ERNAKULAM, KOCHI-31. 3. BABY, D/O.LATE VARGHESE, KADAVIL HOUSE SYRIAN CHURCH ROAD, ERNAKULAM, KOCHI-31. 4. JOMON, S/O.LATE VARGHESE, KADAVIL HOUSE SYRIAN CHURCH ROAD, ERNAKULAM, KOCHI-31. BY ADV. SRI.T.K.KURIKESU RESPONDENTS/DECREE HOLDER/DEFENDANTS 5 & 6:- 1. T.F.JOSEPH, S/O.CHEEKAMMA, THOTTATHUCHERY HOUSE, SYRIAN CHURCH ROAD ERNAKULAM, KOCHI.31. 2. SAJU, S/O.LATE VARGHESE, KADAVIL HOUSE, SYRIAN CHURCH ROAD, ERNAKULAM, KOCHI-31. 3. ALEX, S/O.LATE VARGHESE, KADAVIL HOUSE SYRIAN CHURCH ROAD, ERNAKULAM, KOCHI-31. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 1209 of 2008 ========================== Dated this the 15th day of December, 2008. JUDGMENT Defendants 1 to 4 in O.S. No. 1356 of 2001 on the file of the Principal Munsiff's Court, Ernakulam are the appellants in this Second Appeal. The said suit was one for a perpetual as well as a mandatory injunction. The plaintiff/1st respondent filed the suit seeking a mandatory injunction to remove a septic tank constructed by the defendant in plaint A schedule property and to remove the steps illegally constructed by them encroaching into the plaint B schedule property and for a decree of perpetual injunction restraining defendants 1 to 4 from making any construction in the plaint B schedule property and also from obstructing the user of the plaintiff over the plaint B schedule property. As per the judgment and decree passed by the trial court on 24.01.2005, the suit was decreed in part as follows:- “a. A decree of mandatory injunction directing the defendants to cover the opening on the western side of the newly constructed tank so as to prevent omission of foul smell from it within two months failing which plaintiff is permitted to cover the same and in such a circumstances he will be entitled to recover the costs for the same from defendants 1 to 4. R.S.A.No. 1209/2008 : 2: b. A decree of mandatory injunction directing defendants 1 to 4 to remove the steps illegally constructed by them encroaching into the plaint B schedule property within two months failing which plaintiff is authorised to remove the same and in such a circumstances he is entitled to recover the costs of the same from defendants 1 to 4. c. A decree of permanent prohibitory injunction restraining defendants 1 to 4 from making any construction in the plaint B schedule property and also from obstructing the user of the plaintiff over plaint B schedule property.” 2. Even though the appellants preferred an appeal and a Second Appeal against the said decree, those appeals were dismissed confirming the decree passed by the trial court. Thereafter, the decree holder sought execution of the decree by filing E.P. No. 429 of 2007. The appellants resisted the E.P contending inter alia that the steps sought to be removed were very old steps which were in existence for the past several years and that the property was not correctly identified and that the plaintiff himself had after the institution of the suit, amended the plaint by changing the survey number. 3. The Executing Court rejected the objections raised by the appellants on the ground that it was not open to the Executing Court to consider those objections by going behind the R.S.A.No. 1209/2008 : 3: decree. Accordingly, the execution petition was allowed on 22.02.2008 directing the Amin to execute the decree for removal of the steps constructed in the plaint B schedule property. On appeal preferred by the appellants as A.S. No. 93 of 2008 before the District Court, Ernakulam, that court dismissed the appeal confirming the order passed by the Executing Court. Hence this Second Appeal. 4. The following is the question of law which is formulated in the memorandum of Second Appeal:- When there is no proper identity of the property mentioned in the decree, can an execution petition be filed to deliver the property? 5. The learned counsel appearing for the appellants reiterated before me the contentions raised by them before the courts below. 6. I am afraid that I cannot agree with the above submissions. It may be true that the judgment debtors are 'kudikidappukars' in possession of the kudikidappu in question. But then, the appellant having raised the question of identity in the suit and having lost the case which was fought upto this R.S.A.No. 1209/2008 : 4: Court, cannot again re-agitate the same question in execution. The question of identity having decided in the suit itself, it is not open to the appellants to rake up the very same contentions in execution of the decree. The three steps which have been directed to be removed as per the decree which has been confirmed concurrently, will have to be removed by executing the decree for mandatory injunction. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The question of law formulated in the memorandum of appeal also does not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 15th day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A.No. 1209/2008 : 5: