IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 OP(C).No. 389 of 2010(O) ------------------------ OS.288/1993 of MUNSIFF COURT,MUVATTUPUZHA .................... PETITIONERS: ------------------------------- 1. KOCHUTHRESSIA, W/O.MATHEW, POTHANIKKATTU HOUSE, KOTHAMANGALAM KARA, KOTHAMANGALAM VILLAGE. 2. MERLY V.VARGHESE, D/O.VARGHESE, PAREKKUDIYIL HOUSE, KOTHAMANGALAM KARA, KOTHAMANGALAM VILLAGE. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENT: --------------- T.K.SASIDHARAN, S/O.KESAVAN, THANNIVEETTIL HOUSE, KOTHAMANGALAM KARA, KOTHAMANGALAM VILLAGE-686 691. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.389 of 2010 --------------------------------------- Dated this 21st day of October, 2010 JUDGMENT This petition is in challenge of order on E.A.No.38 of 2004 in E.P.No.36 of 2003 in O.S.No.288 of 1993 of the court of learned Munsiff, Muvattupuzha. That is a suit for declaration and injunction which was decreed in favour of respondent. Respondent filed E.P.No.36 of 2003 to execute the decree. In the course of execution proceeding respondent filed E.A.No.38 of 2004 to amend the execution petition to incorporate a prayer that in violation of the decree for prohibitory injunction petitioners have put up certain PVC pipes on the outer wall of the building which was injuncted by the decree, the same has to be removed and since the decree has thus been violated petitioners are to be detained in the civil prison and their properties are to be attached. Rejecting the objection preferred by petitioners the application was allowed and amendment was permitted vide order dated 12-07-2010. Learned counsel for petitioners contend that amendment application itself is defective in that when a prayer for arrest of petitioners or attachment of their property is made, execution petition must comply with the requirement under Rules 11A and 13 of Order XXI O.P(C).No.389 of 2010 : 2 : of the Code of Civil Procedure (for short, “the Code”) and in the absence of that, the application for amendment should have been dismissed. 2. It is not disputed that the decree prevented petitioners from making any construction on the western wall of property of petitioners shown in Ext.C2(a), plan (proved on the trial side). According to the respondent, it is in violation of the decree that petitioners put up PVC pipes on the western wall of their property which is liable to be removed. It is on the very same premise that respondent would say that since the decree for prohibitory injunction is violated, petitioners are to be detained in civil prison and their property is to be attached. The question whether reliefs sought for by amendment are allowable and/or, the decree as amended could be executed on the strength of allegation made in the execution petition are matters which the executing court has to consider at the appropriate stage. Now I am concerned with the question whether amendment was permissible. Even if it is assumed that what is sought to be incorporated by amendment is not a defect as referred in Rule 17 of Order XXI of the Code and that Order VI of Rule 17 of the Code is not applicable it is within the power of executing court to allow amendment under Sections 151 or 153 of the Code. In that view of the matter I do not find O.P(C).No.389 of 2010 : 3 : reason to interfere with the impugned order. Other contentions raised as to the executability of reliefs incorporated by amendment can be raised by petitioners before the executing court if they are otherwise entitled to that. Petition is disposed of as above. (THOMAS P JOSEPH, JUDGE) Sbna/-