IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 34848 of 2009(O) -------------------------- AGAINST THE ORDER IN EA.259/09 IN EP 178/08 IN OS.283/1984 of PRL.M.C., KOCHI .................... PETITIONER(S): --------------- 1. CELINE XAVIER, W/O.P.T.XAVIER, CC.XV/1156, NAZRETH, KOCHI-02. 2. JANET, D/O.XAVIER, AGED 42, CC.XV/1156, NAZRETH, KOCHI-02. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.MANU ROY SRI.P.PRIJITH RESPONDENT(S): --------------- 1. P.G.GEORGE, S/O.VICTOR PAPPALI, PUTHUPARAMBIL HOUSE, MOOLAMKUZHY, KOCHI-07. 2. M.MARIYA ALPHONSA, D/O.VICTOR PAPPALI, PUTHUPARAMBIL HOUSE, MOOLAMKUZHY, KOCHI-07. 3. ANTO PAUL, S/O.VICTOR PAPPALI, PUTHUPARAMBIL HOUSE, MOOLAMKUZHY, KOCHI-07. 4. VALENTINE NIMMY, S/O.VICTOR PAPPALI, PUTHUPARAMBIL HOUSE, MOOLAMKUZHY, KOCHI-07. ADV. SRI.AUGUSTINE JOSEPH FOR R1-4 SRI.TONY PETTAH FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.34848/09 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF JUDGMENT IN O.S.NO.283/1984 OF MUNSIFF'S COURT, KOCHI DATED 30.5.1994. EXT.P2: COPY OF ORDER DATED 15.10.2003 ISSUED BY EXECUTION COURT. EXT.P3: COPY OF E.P.NO.178/08 DATED 15.9.2008. EXT.P4: COPY OF DECREE IN O.S.NO.44/02 OF MUNSIFF'S COURT, KOCHI DATED 31.1.2003. EXT.P5: COPY OF ORDER DATED 3.11.2009 OF MUNSIFF COURT. /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.34848 OF 2009 () ----------------------------------- Dated this the 6th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to set aside the order dated 15.9.2009 and Ext.P5 order. ii. to declare that relief (b) sought for in Ext.P2 execution petition is beyond the decree and incapable execution. 2. Petitioners are judgment debtors 1 and 4 in E.P.No.178 of 2008 in O.S.No.283 of 1984 on the file of the Munsiff Court, Kochi. The respondents are the additional decree holders in the above execution petition, who are the children of the original decree holder. Decree passed in the above case was one for recovery of possession with WPC.34848/09 2 consequential injunction. Admittedly, kudikidappu right of the judgment debtors as found by the Land Tribunal on reference over a hut taking in 3.128 cents was recognised under the decree. Leaving aside that kudikidappu holding, recovery was allowed in favour of the plaintiff/decree holder permitting demolition of the structures protruding into the portion which was allowed to be recovered. Pursuant to execution petition filed, delivery was effected and at the time of effecting delivery, the decree holder permitted occupation of the judgment debtors over the hut which extended to 3.237 cents, and the rest of the property was recovered. Satisfaction of the decree was also recorded by the court. Alleging subsequent trespass and meddling with the property recovered under the decree by the judgment debtors, the legal heirs of the decree holder moved the above execution petition seeking prosecution of the judgment debtors for violating the decree of injunction and also to allow the decree holders to put up compound wall on the boundaries of the decree schedule property. Negativing the objections raised by the judgment debtors, the learned Munsiff passed Ext.P5 order permitting the petitioners/decree holders to put up the compound wall WPC.34848/09 3 with direction to the police to render assistance for putting up such constructions. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. It is seen from Ext.P5 order that the court below relying on some observations made in the order passed in C.R.P.No.1797 of 2002 dated 12.12.2003 has formed a conclusion that even when a decree of injunction is granted to abate some nuisance, the decree holder can be permitted to put up construction over the property covered by that decree of injunction to abate the nuisance for ever. I am afraid that the conclusion formed by the learned Munsiff cannot be approved as it goes against the legal principles. An execution court cannot go behind the decree or grant any further relief to a party which is not provided under the decree. In giving effect to the decree, the execution court can pass appropriate orders and even examine the records of the trial court, if found necessary, as to the relief canvassed for and granted by the WPC.34848/09 4 court. No doubt, the execution court has to make every endeavour to execute the decree, but in doing so, it cannot be done in such a way causing grave injury and prejudice to the opposite party providing reliefs to the decree holder, which are not covered by the decree. There was no decree for putting up compound wall under the decree granted in favour of the predecessor of the present petitioners, the original decree holder. Even assuming that the decree of injunction granted was violated by the judgment debtors, which is disputed by them, the court is expected to conduct an enquiry and enter a definite finding as to whether there was any violation, and if so found, then, it has to pass appropriate orders as provided under Order XXI Rule 32 of the Code of Civil Procedure to abate the nuisance caused by flouting the order of injunction. In such circumstances, the measures covered by sub rule (1) of Rule 32 of order XXI of the CPC, that is, attachment of the property of the judgment debtor and his arrest and detention are to be proceeded with. It is also open to the execution court to pass such orders 'as required to be done' as stated under sub rule (5) of Order XXI Rule 32 of the CPC to give effect to the decree of injunction already WPC.34848/09 5 passed by the court. However, for the reason that a decree of injunction has been granted against the opposite party, the execution court is not competent to execute the decree in a manner like in the present case permitting the decree holder to construct compound wall over the decree schedule property, that too, with police aid. When no decree for putting up such construction of compound wall has been granted in favour of the decree holder, the impugned order (Ext.P5) passed by the learned Munsiff cannot be sustained, and it is set aside. The learned Munsiff shall confine the enquiry on the question whether the judgment debtors are liable to be proceeded against for violating the decree of injunction and pass appropriate orders and dispose of Ext.P3 application in accordance with law. Writ petition is disposed accordingly. S.S.SATHEESACHANDRAN JUDGE prp