IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 26311 of 2009(O) --------------------------------------- O.S.NO.1/2001 OF PRINCIPAL MUNSIFF COURT,TRIVANDRUM. .................... PETITIONER: ------------------- SHARMILLA, AGED 40 YEARS, W/O.RAJENDRAN, SHARMILA VILASOM, THURUTHUMOOLA MURI, PADMAVILASOM LANE, PEROORKADA, THIRUVANANTHAPURAM. BY ADVS. MR.MOHAN JACOB GEORGE, SMT.P.V.PARVATHI, SMT.REENA THOMAS, MR.L.RAM MOHAN. RESPONDENTS: ------------------------ 1. GIRIJA KUMARI.S, T.C,5/422, G.C.NAGAR, MANNAMMOOLA, PEROORKKADA, THIRUVANANTHAPURAM. 2. T.SURESH, S/O.LATE S.THANKAPPAN, SHARMILA, VILASOM, THURUTHUMOOLA MURI, PADMAVILASOM LANE, PEROORKKADA, THIRUVANANTHAPURAM NOW RESIDING AT G.C.NAGAR(MAIN LANE)T.C.22/2121 MANNAMMOOLA ROAD, PEROORKADA, THIRUVANANTHAPURAM-5. R1 BY ADV. MR.BIJU BALAKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26311/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 07/11/2008 OF THE PRINCIPAL MUNSIFF'S COURT, IN E.A. NO. 224/2008 IN E.P. NO. 106/2007 IN O.S. NO. 1/2001. EXT.P.2: COPY OF THE JUDGEMENT DTD. 15/07/2009 IN W.P.(C).34712/2008. EXT.P.3: COPY OF THE SAID E.P. NO. 278/2009 IN O.S. NO. 1/2001. EXT.P.4: COPY OF THE IMPLEADING PETITION FILED AS E.A. NO.560/2009. EXT.P.5: COPY OF THE OBJECTION FILED BY THE PETITIONER IN THE IMPLEADING PETITION. EXT.P.6: COPY OF THE ADVANCE PETITION FILED AS E.A. NO. 584/2009. EXT.P.7: COPY OF THE OBJECTION SUBMITTED BY THE R.1. EXT.P.8: COPY OF THE COMMISSION APPLICATION AND THE AFFIDAVIT AND PETITION FILED BY THE R.1. IN E.P.106/07 IN O.S. 1/2001 OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. EXT.P.9: COPY OF THE COMPLAINT SUBMITTED TO POLICE DT. 10/10/09 BY THE PETITIONER'S HUSBAND. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.26311 of 2009 - O --------------------------------- Dated this the 15th day of October, 2009 J U D G M E N T Petitioner was the fifth defendant in O.S.No.1 of 2001 on the file of the Principal Munsiff Court, Thiruvananthapuram. Suit was one for injunction and putting up boundary. First respondent got himself impleaded as additional fifth defendant in the suit and raised a counter claim. Later, the suit was compromised as between the second plaintiff and defendants 2 and 5 and it was dismissed as against rest of the defendants including the petitioner. Pursuant to the compromise decree and its execution, according to the petitioner, a compound wall was put up encroaching upon his property with the assistance of police. Petitioner objected the same and moved an application complaining the acts committed over and above the compromise decree granted and the injury caused by trespass and encroachment over his property. In the enquiry on the application of the petitioner the previous commission report prepared in the suit was exhibited and two witnesses were W.P.(C).No.26311 of 2009 - O 2 examined. The learned Munsiff passed Ext.P1 order holding that in excess of the compromise decree granted a boundary wall was put up by encroaching upon portions of the property of the petitioner. So much so, on reaching such conclusion the learned Munsiff directed for removal of the compound wall and restoring the original position FGHIJ in the plan. The first respondent challenged Ext.P1 order before this Court by filing a writ petition. After hearing both sides vide Ext.P2 judgment the writ petition was dismissed. Ext.P1 order confirmed by this Court vide Ext.P2 judgment ordered the petitioner to move an execution petition for removal of the compound wall put up in excess of the decree through court in case it is not removed by the first respondent within the time granted. Imputing failure on the part of the first respondent to comply with the directions given under Ext.P1 order as confirmed under Ext.P2 judgment petitioner moved an execution petition for implementing Ext.P1 order. Second respondent who was one among the defendants in the suit applied for his impleadment as an additional respondent in the execution petition moved by the petitioner. That application for W.P.(C).No.26311 of 2009 - O 3 impleadment moved by the second respondent was dismissed. The present writ petition has been filed by the petitioner seeking an expeditious disposal of his petition for implementing the orders passed by the court in Ext.P1 order as confirmed by Ext.P2 judgment. It is his case that dilatory tactics are taken by the first respondent by filing commission applications in the execution petition, proceeded on the basis of the compromise decree with a petition to cause delay in implementation of Ext.P1 order. So much so, the writ petition is filed seeking issue of orders/directions to the execution court to expedite the proceedings in Ext.P3 petition. 2. Notice being given first respondent has entered appearance. 3. Learned counsel for the petitioner submits that first respondent has not obstructed in any manner implementation of Ext.P1 order. Whatever that be, the facts and circumstances would prima facie disclose that the first respondent has not complied with the direction for removal of the boundary wall as directed in Ext.P1 order within the time limit fixed. The W.P.(C).No.26311 of 2009 - O 4 court has already passed an order enabling the present petitioner to file an execution petition in the event of default by the first respondent to remove the wall for such removal and to recover the cost from the first respondent. Ext.P1 order has been confirmed by this Court vide Ext.P2 judgment. The execution court is now duty bound to implement that order removing whatever obstruction if any in giving effect to that order. Pendency of any application moved by the fifth respondent in hearing of the execution petition will not stand in the way of implementing Ext.P1 order. I direct the court below to complete the proceedings in Ext.P3 application, expeditiously, at any rate within a period of one month from the date of receipt/production of a copy of this judgment. Writ petition disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-