IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 15583 of 2009(O) -------------------------------------- OS.583/1999 of MUNSIFF COURT, N.PARAVUR .................... PETITIONER(S): ---------------------- PONSY, W/O. TOUSY, VALAPPIL VEEDU, PUTHENVELIKKARA KARA, PUTHENVELIKKARA VILLAGE. BY ADV. MR.K.JAYAKUMAR MR.P.B.KRISHNAN RESPONDENT(S): ------------------------- BABU ALIAS BABURAJ, S/O. PARAMU, APPACHATHU VEEDU, THIRUTHOOR KARA, PUTHENVELIKKARA VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.15583 OF 2009 (O) ----------------------------------- Dated this the 5th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i) to set aside Exts.P7, P8 and P9 orders in exercise of the supervisory jurisdiciton of this Hon'ble Court; ii) to direct the Munsiff Court, North Paravur to consider the Ext.P6 objection filed by the petitioner and dismiss the E.P. As inexecutable; iii) to order stay of all further proceedings in E.P.No.133/2008 in O.S.No.583/1999 on the file of the Munsiff's Court, North Paravur, pending disposal of the above Writ petition; and iv) to grant the petitioners any other relief that this Hon'ble Court may deem fit and proper including the costs of this writ petition. 2. Petitioner is the judgment debtor in E.P.No.133/2008 in O.S.No.583/1999 on the file of the Munsiff's Court, North WPC.15583/09 2 Paravur. Petitioner as plaintiff instituted the above suit for a decree of perpetual prohibitory injunction against the respondent in respect of a way scheduled in the plaint. In the suit, the respondent raised a counter claim for decree of injunction both prohibitory and mandatory. After trial of the suit, claim of the plaintiff was found against and the suit dismissed, but, the counter claim of the defendant was allowed in part granting a decree of perpetual prohibitory injunction as sought for. But the decree of mandatory injunction sought by the defendant was not allowed. The defendant preferred an appeal before the District Court. Ext.P3 is the judgment rendered by the appellate court in which, the relief of mandatory injunction claimed by the defendant was also granted. The case of the defendant for the decree of mandatory injunction was that after the institution of the suit, some constructions had been made by the plaintiff in the pathway obstructing peaceful enjoyment of the pathway. Time limit was fixed under the decree passed by the appellate court for removal of the obstructions in the pathway by the plaintiff and that not having been complied with, the decree WPC.15583/09 3 holder applied for execution. In the execution, the judgment debtor/plaintiff contended the decree is void and unexecutable. After hearing both sides, the learned Munsiff passed Ext.P7 order directing the Amin to execute the decree of mandatory injunction. Propriety and correctness of that order is challenged in the present writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. The learned counsel invited my attention to the observations made by the District Judge in Ext.P3 judgment, which according to the counsel, indicate that the report filed by the Commissioner and exhibited in evidence as Ext.C1 is not sufficient to identify the constructions allegedly put up over the pathway by the plaintiff. That being so, according to the counsel, the decree of mandatory injunction granted by the appellate court is vague in as much as the constructions put up in the pathway are not properly identified. I do not find any merit in the submissions made by the counsel. Immediately on institution WPC.15583/09 4 of the suits, an Advocate Commissioner visited the property and prepared report, which was also exhibited in evidence. Later, after the counter claim was raised by the defendant, another report was also obtained through the Advocate commissioner and that also exhibited in evidence. These two reports would indicate, if at all there is any vagueness, as to what are the constructions put up by the plaintiff in the pathway, which are liable to be removed in execution of the decree of mandatory injunction. Prima facie, there appears to be no vagueness in the decree granted by the court below and nothing to indicate that it is unexecutable. I do not find any impropriety or illegality in Ext.P7 order passed by the learned Munsiff. The writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009