IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 OP(C).No. 3497 of 2011(O) ------------------------ IA. NO. 395/2011 IN OS. NO. 51/2005 OF MUNSIFF COURT, PALA ................... PETITIONER : -------------------- AUGUSTINE, S/O.CHACKO, AGED 52 YEARS, RESIDING AT KIZHAKKECHOORICKAPRAYIL, KOZHA KARA, KURAVILANGADU. BY ADV. SRI.P.C.HARIDAS RESPONDENT : ---------------------- PROF.CICILIYAMMA JOSEPH OUSEPH PARAMBIL MEMORIAL TRUST 3255/2000, REPRESENTED BY ITS MANAGING TRUSTEE, PHILOMINA JOSEPH, KOZHA KARA, KURAVILANGADU VILLAGE-686 633. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 3497 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT IN OS.NO. 51/05 ON THE FILES OF THE MUNSIFF'S COURT, PALA. EXT.P2: TRUE COPY OF THE IA.NO. 370/05 IN OS NO.51/05 OF THE MUNSIFF'S COURT, PALA. EXT.P3: TRUE COPY OF THE COMMISSION REPORT DATED 25-2-2005 IN OS 51/05 OF THE MUNSIFF'S COURT, PALA. EXT.P4: TRUE COPY OF THE PETITION PRAYING TO DISMISS EXT.P2 FILED BY THE PETITIONER AND ANOTHER. EXT.P5: TRUE COPY OF THE WRITTEN STATEMENT IN OS 51/05 OF THE MUNSIFF'S COURT, PALA. EXT.P6: TRUE COPY OF THE JUDGMENT IN OS NO.246/94 OF THE MUNSIFF'S COURT, PALA. EXT.P7: TRUE COPY OF THE DECREE IN OS.NO. 246/94 OF THE MUNSIFF'S COURT, PALA. EXT.P8: TRUE COPY OF THE COMMISSION REPORT IN OS .NO.246/94 OF THE MUNSIFF'S COURT, PALA. EXT.P9: TRUE COPY OF THE IA 611/2005 IN OS NO. 51/05 OF THE MUNSIFF'S COURT, PALA. EXT.P10: TRUE COPY OF THE ORDER DATED 21-05-2005 IN EXT.P2 AND P9. EXT.P11: TRUE COPY OF THE IA.NO. 990/2007 IN OS.NO. 51/05 OF THE MUNSIFF'S COURT, PALA. EXT.P12: TRUE COPY OF THE IA.NO. 1133/2007 IN OS.NO. 51/05 OF THE MUNSIFF'S COURT, PALA. EXT.P13: TRUE COPY OF THE COMMISSION REPORT IN OS .NO.51/05 OF THE MUNSIFF'S COURT, PALA. EXT.P14: TRUE COPY OF THE COMMISSION REPORT IN OS.NO. 65/05 OF THE MUNSIFF'S COURT, PALA. EXT.P15: TRUE COPY OF THE ORDER DATED 19-08-2010 IN EXTS.P11 AND P12. EXT.P16: TRUE COPY OF THE JUDGMENT DATED 26-10-2010 IN CMA.NO. 16/10 OF THE SUB COURT, PALA. EXT.P17: TRUE COPY OF THE JUDGMENT IN OP.NO. 649/2011. EXT.P18: TRUE COPY OF THE E.P.2/2011 IN OS.NO. 246/94 OF THE MUNSIFF'S COURT, PALA. EXT.P19: TRUE COPY OF THE PETITION FOR STAY FILED IN EP.NO. 2/2011 IN OS 246/94 OF THE MUNSIFF'S COURT, PALA. (Contd...) OP(C).No. 3497 of 2011(O) EXT.P20: TRUE COPY OF THE ORDER DATED 20-6-2011 IN IA.NOS. 711/11, 712/11 IN OS.NO. 246/94 OF THE MUNSIFF'S COURT, PALA. EXT.P2O(a): TRUE COPY OF THE ORDER DATED 20-6-2011 IN IA 713/11 IN OS .NO.246/94 OF THE MUNSIFF'S COURT, PALA. EXT.P21: TRUE COPY OF THE JUDGMENT DATED 15-7-2011 IN OPC 2049/11. EXT.P22: TRUE COPY OF THE IA 395/11 IN OS.NO. 51/2005 OF THE MUNSIFF'S COURT, PALA. EXT.P23: TRUE COPY OF THE OBJECTION TO EXT.P22. EXT.P24: TRUE COPY OF THE PETITION FOR STAY OF EXT.P15. EXT.P25: TRUE COPY OF THE ORDER DATED 13-10-2011 ON EXT.P22 OF THE MUNSIFF'S COURT, PALA. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3497 of 2011 ==================================== Dated this the 03rd day of November, 2011 J U D G M E N T Petitioner is the second defendant in O.S. No.51 of 2005 of the court of learned Munsiff, Pala. That was a suit filed by the respondent for a decree for prohibitory injunction against petitioner and the first defendant (first defendant under whom petitioner claims right is no more) trespassing into the suit property or putting up structures therein. In that suit, learned Munsiff passed Ext.P10, order on I.A. No.370 of 2005 restraining petitioner and defendants 1 and 4 from putting up Kayyalas or other structures in the suit property or committing encroachment in the said property but making it clear that the temporary injunction would not affect the right of decree holder (first defendant) in O.S. No.246 of 1994 to execute that decree. It was further made clear that claim of respondent in O.S. No.65 of 2005 will also remain unaffected by Ext.P10, order. Though petitioner had filed I.A. No.611 of 2005, that application was also dismissed by Ext.P10, order without prejudice to the right of the decree holder (deceased first defendant) in O.S. No.246 of 1994 to O.P(C) No.3497 of 2011 -: 2 :- execute that decree. At the time of institution of the suit respondent took out a commission (Ext.C1 in the court below). The Commissioner filed report dated 25.02.2005 reporting that there was no parapet wall for the Well situated in the suit property. Later, respondent filed Ext.P11, application for restoration complaining that in violation of Ext.P10, order petitioner and others put up parapet wall for the Well and slab over it. Petitioner filed objection to Ext.P11 and filed I.A. No.1133 of 2007 seeking relief against respondent and for dismissal of Ext.P11, application. The said applications were disposed of by Ext.P15, order. Learned Munsiff found that in violation of Ext.P10, order the parapet wall and slab were put up for the Well in question but declined to hold that petitioner did so, for want of evidence. Restoration of the Well to its original position was ordered as per Ext.P15, order. That was followed by petitioner filing Ext.P22, application purportedly under Rule 18 of Order XXI and Section 151 of the Code of Civil Procedure (for short, “the Code”) seeking adjustment of Ext.P15, order with Ext.P7, decree obtained by the deceased first defendant in O.S. No.246 of 1994. That application was dismissed as per Ext.P25, order which is under challenge in this proceeding. O.P(C) No.3497 of 2011 -: 3 :- 2. Learned counsel for petitioner has referred me to the several rounds of litigation between the parties or their predecessors-in-interest and the pending litigations between them or predecessors-in-interest as the case may be. It is contended by learned counsel that by Ext.P7, decree in O.S. No.246 of 1994 granted in favour of deceased first defendant and against predecessors-in-interest of the respondent, the latter were injuncted from trespassing into the suit property, destroying the boundaries, causing damage to the Well, Motor Pump and Pump house and causing any obstruction to the deceased first defendant taking water from the Well in question. Learned counsel also invited my attention to Ext.P18, execution petition filed by the successors-in-interest of the decree holder under Ext.P7, to execute that decree under Rule 32(1) of Order XXI of the Code alleging violation or disobeyance of the decree. Learned counsel has invited my attention to Ext.P8, report of the Advocate Commissioner in O.S. No.246 of 1994 to contend that Ext.P7, decree has been violated by the successors-in-interest of judgment debtors therein who according to the petitioner includes the respondent as well. It is contended that in the circumstances it is possible to adjust Ext.P15, order with Ext.P7, O.P(C) No.3497 of 2011 -: 4 :- decree. It is also contended that if Ext.P15, order is executed a portion of the building belonging to the petitioner is also to be demolished. 3. Apparently, Rule 18 of Order XXI of the Code has no application to the case since that relates to execution of cross decrees for recovery of money. It is seen from the order under challenge that certain decisions were cited on behalf of petitioner to contend that even in situation of this nature there could be adjustment/set off of the decree/order. 4. I have gone through the order under challenge and find that the executing court has held that those decisions relate to decrees for payment of money and not to situation of the nature as in the present case. I must also bear in mind that Ext.P18, execution petition filed by the successor-in-interest of the decree holder in Ext.P7, decree is pending consideration, it is yet to be decided whether there was any violation and if so, by the successors-in-interest of the judgment debtors in Ext.P7, decree. Now question is whether Ext.P15, order is to be enforced. 5. In Ext.P7, decree, judgment debtors therein are injuncted from trespassing into the suit property or destroying the boundaries, causing damage to the Well, Motor Pump, etc. If O.P(C) No.3497 of 2011 -: 5 :- any such act has been done by the successors-in-interest of the judgment debtors in Ext.P7, decree the decree holder or his successors-in-interest can prove the same and enforce that decree as provided under law. 6. It is seen from Exts.C1 and C2, marked in the trial court that the condition of the Well is changed after Ext.P10, order. Certainly that is in violation of Ext.P10, order and it was within the power of the court to ensure that status quo as on the date of suit is restored. That is what is done by Ext.P15, order. The request for adjustment in the circumstances stated above was rightly rejected by Ext.P25, order. As such there is no reason to interfere with Ext.P25. 7. It is a different matter whether petitioner is entitled to enforce Ext.P7, decree as prayed for in Ext.P18, execution petition. That is a matter which the executing court has to consider in the proceeding. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. O.P(C) No.3497 of 2011 -: 6 :- vsv