IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WP(C).No. 21552 of 2008 (N) ----------------------------------- AGAINST THE ORDER IN EP 62/2007 IN OS.767/2003 of PRL.M.C., ERNAKULAM .................... PETITIONER: --------------- ANNAMMA JOSEPH, AGED 56 YEARS W/O. JOSEPH, CHULLIYATTU, CHILAVANNOOR ELAMKULAM VILLAGE, (WRONGLY TYPED AS ERNAKULAM VILLAGE) BY ADV. SRI.V.L.SHENOY SRI.L.JAYAWANTH RESPONDENT: ----------------- CHERIYAN JOSEPH, AGED 72 YEARS S/O.CHERIAN, THALIYATH HOUSE, CHILAVANNUR ELAMKULAM VILLAGE. ADV. SRI.VIVEK VARGHESE P.J. FOR R1 SRI.P.J.VINOD JOSEPH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21552 of 2008 (N) APPENDIX PETITIONER'S EXTS:- EXT.P1:- COPY OF THE EXECUTION PETITION E.P.62/07 IN O.S.767/03 ON THE FILE OF THE MUNSIFF'S COURT, ERNAKULAM. EXT.P2:- COPY OF THE ORDER DT.19/02/08 IN E.P.62/07 IN O.S.767/03 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM. ............... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.21552 of 2008 ------------------------------------------------ Dated this the 6th day of January, 2009 JUDGMENT Petitioner is the decree holder in O.S.767/03 on the file of the Munsiff's Court, Ernakulam. He obtained a decree against the respondent inter alia for restoration of the lateral support deprived of to item No.1 property belonging to him by the respondent tampering with the foundations of the compound wall by deepening a “thodu” that was in existence. The decree provides that the respondent/defendant shall restore lateral support to the compound wall of the petitioner/decree holder. The court below vide Ext.P2 order directed the decree holder to provide a concrete pipe of 1.5 feet diametre for the purpose of placing in item No.3 property to have flow of water beneath the portions where the filling is necessary. It is W. P. C. No.21552 of 2008 -2- that direction that is assailed by the decree holder in this Writ Petition. The decree passed by the court below directing the respondent to restore lateral support has become final having not been appealed against. 2. It is contended before me by the learned counsel for the respondent that the soil that has been removed from the “thodu” which provided lateral support has been put back and thus even before the decree the lateral support was restored. If at all his contention is true that is a matter which should have been brought to the notice of the trial court by adducing proper evidence. He having not done that his contention that is advanced now cannot be countenanced. The contention that soil has been put back and lateral support has been restored is unsound when the soil that has been removed is from W. P. C. No.21552 of 2008 -3- one side of the “thodu” through which water was being drained. When once the bank of a “thodu” is tampered with there is no meaning in putting back the soil so as to restore the lateral support to the adjoining property as the soil that is put back will be washed away by the water in its flow through the “thodu”. The respondent who has deprived lateral support to the plaintiff's property cannot complain of the expenses that may have to be incurred by him to satisfy the decree. Whatever be the cost that is to be incurred, he has to comply with the direction and it is not for the decree holder to provide necessary materials or even a concrete pipe for completing the work of restoration of lateral support to item No.1 property. The suggestion made from this Court that in the alternative the judgment debtor can provide shuttering in W. P. C. No.21552 of 2008 -4- the “thodu” beneath the compound wall of the decree holder and provide concreting beneath so that that will furnish lateral support sufficient enough for the compound wall not to fall down, counsel for the respondent submits that it will be still costlier. In the circumstances, the direction issued by the executing court to the decree holder to provide concrete pipe of 1.5 feet diametre for the purpose of placing in item No.3 property to have flow of water beneath the portion where the filling is necessary is set aside. It is for the respondent/judgment debtor to do the entire work to comply with the decree passed against him which has become final. The court below shall expedite disposal of execution petition No.62/07 without any further delay. W. P. C. No.21552 of 2008 -5- 3. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-