IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 CRP.No. 27 of 2009() -------------------- AGAINST THE ORDER DATED 28.11.2008 IN E.P.NO.310/1997 IN OS.725/1988 of PRL.MUNSIFF COURT, CHERTHALA .................... REVN. PETITIONER(S)/10TH JUDGEMENT DEBTOR ------------------------------------------ C.T.ANIRUDHA, AGED 40 YEARS, S/O.THANKAPPAN, VADAKKE CHALIL HOUSE, PANAVALLY VILLAGE, TRICHATTUKULAM P.O. CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.P.P.SUBHASH CHANDRAN SRI.PRAMOD KOCHUTHOMMEN.E. RESPONDENT(S)/DECREE HOLDERS & JUDGEMENT DEBTORS 1 TO 9 AND 11 TO 21: -------------------------------------------------------- 1. GOVINDA PANICKER, S/O.SANKARAN NAIR, PUTHENPURAYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK (DIED) 2. ANANDAVALLY AMMA, W/O.LATE GOVINDA PANICKER, PUTHENPURAYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK (DIED) 3. SANTHOSH KUMAR, S/O.LATE GOVINDA PANICKER, PUTHENPURAYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK 4. SALILA KUMARI, D/O.LATE GOVINDA PANICKER PUTHENPURAYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK 5. SUNIL KUMAR, S/O.LATE GOVINDA PANICKER PUTHENPURAYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK CRP.27/09 6. SANJEEV KUMAR, S/O.LATE GOVINDA PANICKER PUTHENPURAYIL, AROOKUTTY VILLAGE, CHERTHALA TALUK 7. C.P.PADMANABHAN, S/O.PAPPU, CHALI NIKARTHIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 8. PURUSHOTHAMAN, S/O.SANKUNNI, THARAYIL HOUSE, PANAVALLY VILLAGE, CHERTHALA TALUK. 9. DHARMAJAN, S/O.AYYAPPAN, THAZHCHAYIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 10. KUNJAN NARAYANAN, S/O.KUNJAN, NIKARTHIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 11. VELAYUDHAN, S/O.KARUMPAN, MUKKANNAMCHIRA, PANAVALLY VILLAGE, CHERTHALA TALUK. 12. KUTTY CHANDRAN, S/O.KOCHUKUTTY, PALLADI NIKARTHIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 13. MADHAVAN RAVI, S/O.MADHAVAN, CHIRAYIL VEETTIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 14. DAMODARAN BABU, S/O.DAMODARAN, KARIKKARACHIRAVEETTIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 15. KARUMBAN SASI, S/O.KARUMBAN, MUKKANNAMCHIRAYIL VEETTIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 16. NADARAJAN, S/O.KRISHNAN, KOCHUKALAPPURACKAL, PANAVALLY VILLAGE, CHERTHALA TALUK. 17. RAJAN, S/O.KANDAN, VALAKKEKKOTTIYA, PANAVALLY VILLAGE, CHERTHALA TALUK. 18. SREENIVASAN, S/O.DAMODARAN, KOLATHARA NIKARTHIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 19. RAJAN, S/O.SANKUNNI, THARAYIL, PANAVALLY VILLAGE, CHERTHALA TALUK. CRP.27/09 20. VINODAN, S/O.AYYA, NIKARTHIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 21. RAJU, S/O.THEVAN, PULAVELIVATTACHIRAYIL PANAVALLY VILLAGE, CHERTHALA TALUK. 22. ASOKAN, S/O.VELAYUDHAN, KALATHIL VEETTIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 23. THANKAMMA, D/O.PENNAMMA, CHENNEZATTU CHIRAYIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 24. CHANDRA, D/O.CHIRITHA, THARAYILVEETTIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 25. USHA, D/O.THANKAMMA, KALATHIL VEETTIL, PANAVALLY VILLAGE, CHERTHALA TALUK. 26. OMANA, D/O.BHARATHI, OLATHARA NIKARTHIL, PANAVALLY VILLAGE, CHERTHALA TALUK. ADV. SRI.T.R.RAJAN FOR R3 TO R6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.27/09 ORDER IN I.A.NO.127/2009 IN C.R.P.NO.27/2009 DISMISSED. SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.27 OF 2009 (B) ----------------------------------- Dated this the 6th day of October, 2009 O R D E R The revision is directed against the order dated 28.11.2008 in E.P.No.310 of 1997 in O.S.No.725 of 1988 on the file of the Principal Munsiff Court, Cherthala. The above execution petition was filed by the decree holder/respondent, in whose favour a decree of perpetual prohibitory injunction was passed in the suit against the defendant. Admittedly, the property in respect of which decree was granted having an extent of 1 acre 84 cents was not identified on the trial side. The above suit, it is stated, was jointly tried with another suit of the very same plaintiff, in which State alone was the defendant. That suit O.S.No.838 of 1988, after trial, was dismissed. The respondent/plaintiff filed the above execution petition alleging that the petitioner/10th judgment debtor disobeyed the decree of injunction granted in O.S.No.725 of 1988, moving the application under Order XXI Rule 32 of the Code of Civil Procedure. In the enquiry on that petition, both sides let in evidence and a Commissioner appointed by the CRP.27/09 2 court, after conducting local inspection, prepared two reports and plan. On the basis of the reports prepared by the Commissioner and also the evidence let in the proceedings, the court below concluded that the 10th judgment debtor violating the decree trespassing upon a portion of the plaint property continues in possession of such portion; and, forming such a conclusion, the execution petition was allowed directing recovery of the encroached portion of 0.5 cents from the 10th judgment debtor. It was further ordered that in the event of further violation, 10th judgment debtor shall be detained in civil prison till he obeyed the terms of the decree. Propriety and correctness of that order is challenged in the revision by the 10th judgment debtor. 2. I heard the counsel on both sides. The learned counsel for the petitioner/10th judgment debtor highlighting that there was no identification of the plaint property when a decree was passed contended that the orders passed by the execution court after deputing a Commissioner for identifying the property on the execution side, is not proper and correct. It is also contended that even in the execution petition the CRP.27/09 3 allegation raised by the decree holder was that the 10th judgment debtor continued in possession of 0.5 cents of land in excess of his holding and not of a case of subsequent trespass after passing of the decree. So much so, this was not a fit case where the proceedings under Order XXI Rule 32 of the CPC could have been invoked raising the plea of disobedience of the decree of injunction, is the submission of the counsel. On the other hand, the learned counsel for the 1st respondent/decree holder contended that a commissioner was deputed on the execution side pursuant to orders passed by this Court in a writ petition when the order of the court below declining an appointment of a Commissioner was challenged. It is further submitted that in execution of the decree, it is open to the execution court to ascertain and fix up the identity of the property in terms of the decree even if the decree is silent about the identification of the property. Reliance is placed on P.N.Kurian v. Thulasidas (2003 (1) KLJ 716) to substantiate the submissions so made. 3. Indisputably, the identity of the plaint property having an extent of One acre 84 cents was not fixed and CRP.27/09 4 determined when a decree was passed in favour of the 1st respondent/decree holder. In respect of a portion of the property, that is, 0.5 cents, despite passing of the decree, the 10th judgment debtor continued to retain his possession, is the allegation raised for proceeding against him under Order XXI Rule 32 of the CPC. That 0.5 cents is determined with reference to the property under his occupation, which under his title deed, is only having an extent of 6.25 cents. On determination by the Commissioner, the 10th judgment debtor was found in possession of 6.75 cents, that is, in excess of 0.5 cents, and so much so, there is a trespass in the plaint property by him, was the conclusion formed in the proceedings under Order XXI Rule 32 of the CPC directing for recovery of possession of that 0.5 cents. Simply because a decree of perpetual prohibitory injunction was granted in favour of the 1st respondent/decree holder over a large extent of property, having an extent of one acre 84 cents, it does not follow that if the 10th judgment debtor is found to be in possession of some land in excess of his title deed, that can be determined as part of the property belonging to the decree holder/1st respondent. A commission was taken out on the CRP.27/09 5 execution side on the orders of this Court, in an original petition, will not confer any substantive right on the 1st respondent/decree holder in vindicating and establishing the case canvassed in the proceedings imputing violation of injunction by the 10th judgment debtor. A copy of the judgment rendered by this Court on 29th November, 2003 in O.P.No.9797 of 2003 passed by this Court was handed over to me for perusal. The execution court was ordered to appoint a Commissioner in the aforesaid judgment, which, it is seen, was ordered under different circumstances. Some applications were put by some persons for assignment of a portion of the land and to determine it, at that stage, the decree holder sought for appointment of a Commissioner to verify the details of the property and encroachment made by the respondent. Several other writ petitions had been filed for police protection and similar reliefs by the decree holder in respect of the property. So much so, any direction issued by this Court for appointment of a commission by the execution court cannot be canvassed as a circumstance lending assistance to the decree holder to establish the identity of the decree schedule property and also encroachment of any portion of CRP.27/09 6 that property by the 10th judgment debtor or any other person. The question to be considered is as on the date of the decree, whether the 10th judgment debtor was in possession of the property of 0.5 cents, which is ordered to be recovered; and if such excess of land continued in his possession, the identification of the property in execution, is not sufficient to form a conclusion that he has violated the decree. A decree had been passed in the suit, but, with the identity of the property not established, would not lead to a conclusion that the excess area under the occupation of the 10th judgment debtor came into his possession violating the decree. So, this was a case where there was total absence of evidence to conclude that there was disobeyance or violation of the decree by the 10th judgment debtor. The decision cited by the learned counsel in P.N.Kurian v. Thulasidas (2003 (1) KLJ 716) has no application to the facts of the present case. In a case where declaration of title over the property with recovery of possession was granted, this Court held that in effecting the delivery, the question of identity of the property can be determined by the execution court, but, in the present case, the question of violation of a decree of injunction, the property CRP.27/09 7 which remained unidentified on the trial side, is sought to be determined by identifying the property in execution. Needless to point out, the question of identity of a property with respect to which a decree of injunction has to be granted falls within the province of the trial court adjudicating the disputes involved in the suit, and not on the execution side. Fixing the identity of the property decreed in the suit for injunction, on the execution will cause prejudice to the person against whom such a decree was passed. Order passed by the learned Munsiff, in the facts and circumstances, cannot be sustained, and, it is set aside. Revision is allowed. S.S.SATHEESACHANDRAN JUDGE prp