IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 29532 of 2008(N) -------------------------- PETITIONER(S): --------------- SRI.A.V.JOHN, AMBALATHINKAL, THUNDATHUMKADAVU, VARAPPUZHA. BY ADV. MR.M.V.MATHEW RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, ERNAKULAM. 2. REVENUE DIVISIONAL OFFICER, REVENUE DIVISION OFFICE, FORT KOCHI. 3. SRI.SATHEESH KUMAR, S/O.SATHYA NATHA MENON, PAVANA VEEDU, VARAPPUZHA. 4. VIJAYAN, S/O.KRISHNAN, ITTIATHIPARAMBIL VEEDU, VARAPPUZHA. 5. SMT.SHEEBA, W/O.VIJAYAN, ITTIATHIPARAMBIL VEEDU, VARAPUZHA. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR ADV. MR.SHAJI THANKAPPAN FOR R4 & 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J ............................................... W.P(C) No. 29532 of 2008 ................................................. Dated this the 17th day of August, 2009 J U D G M E N T The petitioner and others claim to have filed Ext.P1 petition before the Executive Magistrate for removal of obstruction to a water channel by respondent No.4 and 6. The Executive Magistrate issued Ext.P4 communication to the petitioner stating that since in respect of the same subject matter O.S. No. 579 of 2006 is pending before the Munsiff's Court, Paravur, no further proceedings can be taken on the petition filed by the petitioner and others. That is under challenge before me. Petitioners' contention is that the pendency of a suit cannot be a bar for the Executive Magistrate to take action on a petition for removing obstruction of a water channel, which is used by the public. 2. The 4th respondent has filed a counter affidavit producing the judgment in O.S. No. 579 of 2006 in which the Munisiff's court has granted a mandatory injunction restraining the petitioner and others claiming under him from trespassing into the plaint schedule property for destroying the boundaries W.P(C) No. 29532 of 2008 -2- of the plaint schedule property, digging any canal through the plaint schedule property and interfering with the peaceful possession and enjoyment of the plaint schedule property. It is not disputed before me that the plaint schedule property in O.S. No. 579 of 2006 is the property comprised of water channel, obstruction of which the petitioner and others want to remove. That being so, as long as the decree is in force, the petitioner cannot seek removal of the so called obstruction to the water channel. Accordingly the writ petition is disposed of holding that as long as the decree in O.S. No. 579 of 2006 of the Munsiff's Court, Paravur is in force, the Executive Magistrate cannot take any proceedings on Ext.P1 complaint filed by the petitioner and others. S. SIRI JAGAN, JUDGE rhs