IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 CRP.No. 319 of 2011() ------------------------------- AGAINST THE ORDER DATED 08/02/2011 IN EP.91/2008 IN OS.233/2005 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... REVN. PETITIONER(S): DECREE HOLDERS/PLAINTIFFS ------------------------------------------------------------------------------- 1. JOY XAVIER, S/O.MARIYAMMA XAVIER, THANDANPARAMBIL, THAKAZHY. 2. MARYKUTTY XAVIER, D/O.MARIYAMMA XAVIER, THANDANPARAMBIL, THAKAZHY. 3. THOMAS XAVIER, S/O.MARIYAMMA XAVIER, THANDANPARAMBIL, THAKAZHY. 4. JACOB XAVIER, S/O.MARIYAMMA XAVIER, THANDANPARAMBIL, THAKAZHY. 5. MATHEW XAVIER, S/O.MARIYAMMA XAVIER, THANDANPARAMBIL, THAKAZHY. (3RD REVISION PETITIONER IS THE POWER OF ATTORNEY HOLDER OF REVISION PETITIONERS 1,2,4&5 AND ARE REPRESENTING THEM). BY ADV. SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS SRI.P.REJINARK RESPONDENT(S): JUDGMENT DEBTORS/DEFENDANTS ------------------------------------------------------------------------------- 1. PARAMESWARAN, AGED 75 YEARS, THANDANPARAMBIL, PADAHARAM MURI, THAKAZHI VILLAGE-688562. 2. UNNIKRISHNAN NAIR, KRISHNALAYAM, PADAHARAM MURI, THAKAZHI VILLAGE-688562. tss C.R.P. NO.319/2011 3. REJI, S/O.KRISHNAPILLAI, KRISHNALAYAM, PADAHARAM MURI-688562. 4. MOHANDAS, MAHESH BHAVAN, PADAHARAM MURI-688562. R2 R4 BY ADVS. SRI.PRAKASH P.GEORGE, SRI.B.PREMNATH. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.319 of 2011 -------------------------------------- Dated this the 24th day of November, 2011. ORDER This civil revision is in challenge of the order dated 08.02.2011 in E.P.No.91 of 2008 in O.S.No.233 of 2005 of the court of learned Principal Munsiff, Alappuzha. Petitioners/decree holders/plaintiffs sued the respondents for a decree for prohibitory injunction to restrain them from trespassing into the suit property, constructing any new road through it or committing waste in the suit property. A decree was passed in favour of petitioners on 09.07.2007 and thereafter, petitioners filed execution petition on 04.12.2007. The decree was executed on 27.02.2008. Later, it is alleged, respondents violated the decree on 29.02.2008, 04.03.2008 and 10.03.2008. Concerning those alleged violations petitioners filed application (E.P.No.91 of 2008) under Order XXI, Rule 32 of the Code of Civil Procedure. The Advocate Commissioner inspected the property and submitted a report. Petitioners filed E.A.No.280 of 2008 on 06.08.2008 seeking permission to construct the fence allegedly destroyed by respondents 2 and 4. That application is said to have been allowed on 11.01.2010 and on 30.01.2010, it is said that the fence was put up in the presence of the Advocate Commissioner, to be (allegedly) demolished by respondents 2 and 4 the same day. Concerning that, petitioners filed E.A.No.97 of 2010 on 19.02.2010 requesting to proceed against the respondents. Respondents preferred objection to the execution petition and E.A.No.97 of 2010. Petitioners adduced CRP No.319/2011 2 evidence. Learned Munsiff found that evidence adduced did not tally with the allegations made in the execution petition concerning alleged act of violation of the decree and dismissed E.P.No.91 of 2008. The said order is under challenge. 2. Learned counsel for petitioners contended that there has been constant violation of the decree at the hands of the respondents and that the executing court failed to note that evidence was adduced in support of the allegations in E.A.No.97 of 2010. The executing court proceeded under the impression that evidence let in was concerning the alleged instances of violation of the decree referred to in E.P.No.91 of 2008. 3. Learned counsel for respondents 2 and 4 submitted that in fact there was no violation and that it was a high-handed act on the part of petitioners under the cover of decree they obtained. According to the learned counsel, evidence let in by petitioners did not tally with the allegations made in E.P.No.91 of 2008. 4. I am not going into the question whether it was necessary to state the alleged violation in the execution petition or the fact of alleged violation could be brought forward by filing an application in the execution petition which is already pending. The contention of petitioners that evidence was adduced with respect to the (alleged) violations referred to in E.A.No.97 of 2010 requires CRP No.319/2011 3 to be considered by the executing court. In that view of the matter, the impugned order cannot stand and the matter has to go back to the executing court for fresh decision. 5. Learned counsel for petitioners requested that petitioners may be allowed to adduce evidence in respect of the (alleged) violation of decree stated in E.P.No.91 of 2008 as well. Learned counsel for respondents 2 and 4 requested that respondents may also be allowed to adduce evidence in respect of their contention regarding alleged violations. I am inclined to grant permission to both sides as requested. Resultantly this civil revision is allowed as follows: i. The order dated 08.02.2011 in E.P.No.91 of 2008 in O.S.No.233 of 2005 and the order in E.A.No.97 of 2010 of the court of learned Principal Munsiff, Alappuzha are set aside. ii. E.P.No.91 of 2008 and E.A.No.97 of 2010 are remitted to the court of learned Principal Munsiff, Alappuzha for fresh decision. iii. Parties shall be given opportunity to adduce further evidence in respect of the allegations in E.A.No.97 of 2010 and E.P.No.91 of 2008. CRP No.319/2011 4 iv. Parties shall appear in the executing court on 19.12.2011. THOMAS P.JOSEPH, Judge. cks