IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 CRP.No. 1899 of 2003 ---------------------- (AGAINST THE ORDER DATED 22/11/2002 IN EP 719/95 IN OS.1668/1993 of III ADDL.MUNSIFF'S COURT,TRIVANDRUM ) REVN. PETITIONER: 3RD JUDGMENT DEBTOR/3RD DEFENDANT. ---------------------------------------------------- CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY THE COMMISSIONER, OFFICE OF THE THIRUVANANTHAPURAM CORPORATION, THIRUVANANTHAPURAM. BY ADV. SRI.N.NANDAKUMARA MENON, SC, THIRUVANANTHAPURAM CORPN. RESPONDENTS/ DECREE HOLDER & JUDGMENT DEBTORS 1 & 2 /PLAINTIFF AND DEFENDANT NOS. 1 AND 2 : ------------------------------------------------------------------------------------------------------------------ 1. RAJASEKHARAN, CORPORATION BANK NO.465, NEAR CENTRAL STADIUM, SECRETARIAT, WARD, THIRUVANANTHAPURAM. 2. STATE OF KERALA REP. BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. ASST.EXECUTIVE ENGINEER, PUBLIC WORKS (CITY ROADS), NEAR P.M.G.JUNCTION, THIRUVANANTHAPURAM. R2 AND R3 BY GOVERNMENT PLEADER ADV. SHRI S. DILEEP. R1 BY ADV. SRI.D.KISHORE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P. NO. 1899 OF 2003 ORDER ON I.A.NOS. 1953 OF 2003 AND 91 OF 2004 IN C.R.P. NO. 1899 OF 2003 DISMISSED. 14.02.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ................................................................................... C.R.P. No. 1899 OF 2003 ................................................................................... Dated this the 14th February , 2008 O R D E R The Corporation of Thiruvananthapuram challenge the order dated 22.11.2002 in E.P.No. 719 of 1995 in O.S.No.1668 of 1993 on the file of the court of the III Addl. Munsiff, Thiruvananthapuram. The suit was filed by the first respondent for permanent prohibitory injunction restraining the defendants, viz. State of Kerala, the Asst. Executive Engineer, P.W.D. (City Roads) and the Corporation of Thiruvananthapuram from forcibly evicting the plaintiff from the plaint schedule bunk and also from removing or demolishing the plaint schedule bunk. The suit was decreed on 22.10.1994. E.P.No. 719 of 1995 was filed by the decree holder alleging that the judgment debtors 2 and 3 wilfully disobeyed the decree and forcibly dispossessed the decree holder from the plaint schedule bunk and that they destroyed the bunk and the movables kept inside the bunk. The incident was on 21.11.1994. The decree holder contended that he has sustained a loss of Rs. One lakh. Execution Petition was filed under Order XXI Rule 32 of the Code of Civil Procedure. 2. In the Execution Petition, judgment debtors 1 and 2 remained ex parte. The 3rd judgment debtor, Corporation of Thiruvananthapuram, filed objections. They denied of having committed any of the alleged offending acts. It was contended that the decree holder himself removed the bunk from the original place and that the Corporation had never violated the decree. 3. Before the executing court, P.Ws. 1 to 3 were examined on the side of the decree holder and D.W. 1 was examined on the side of the respondents. P.W.1 is the C.R.P. No. 1899 OF 2003 2 decree holder. P.W.2 is a person residing nearby and P.W. 3 is an employee working in a canteen attached to an adjacent lodge. The evidence tendered by these witnesses was accepted by the executing court and it was held that the 3rd judgment debtor has violated the decree. 4. The court below directed judgment debtors 2 and 3 to restore the plaint schedule bunk in its original position within a period of one month. In case of failure to comply with the order, it was observed, that penal action will follow and that the decree holder would be entitled to take all necessary steps for restoring the bunk shop and to realise the expenses for the same from judgment debtors 2 and 3. 5. The order passed by the executing court is challenged only by the 3rd judgment debtor. It was contended that there is no evidence to establish that the Corporation has violated the decree of the civil court. The findings rendered by the court below are based on appreciation of evidence of P.Ws. 1 to 3. The court below came to the conclusion that the decree was violated by the officials of the Corporation. I do not think that the court below committed any error in arriving at the findings. I concur with the reasoning and conclusion arrived at by the court below . 6. As regards the mode of execution, the court below referred to the decisions reported in Lakshmi vs. Rama Iyer [1992 (2)K.L.J 776) and in Karutha Narayani and another vs. Narayanan Thankappan and another [1991 (2) K.L.J. 683]. One of the contentions raised by the revision petitioner-Corporation of Thiruvananthapuram was that the decree for prohibitory injunction could not be executed in the manner provided in Rule 32 of Order XXI of the Code of Civil Procedure. It is well settled that Rule 32 applies to prohibitory as well as mandatory injunctions. Now the position has been clarified by the Code of Civil Procedure (Amendment ) Act, 2002, whereby an C.R.P. No. 1899 OF 2003 3 explanation has been inserted to sub-rule (5) of Rule 32 of Order XXI. It is provided therein that for removal of doubts, it is hereby declared that the expression 'the act required to be done' covers prohibitory as well as mandatory injunctions. This amendment, going by the objects and reasons, is clarificatory in nature. In other words, the law, as provided in the explanation, remains same all throughout and it is only clarified by inserting the Explanation. 7. Though an order dated 16.01.2008 was passed on consensus as to how the dispute between parties could be settled, the revision petitioner-Corporation has not co- operated. The Corporation has not instructed the counsel as to how the order could be implemented. Though the learned counsel for the petitioner sought for further time, I am not inclined to grant any further time in view of the fact that several adjournments were granted after the order dated 16.01.2008. For the aforesaid reasons, I am of the view that no interference is called for in the well considered order passed by the court below. The Civil Revision Petition lacks merit and it is accordingly dismissed. However, no order as to costs. K.T. SANKARAN, JUDGE. lk