IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 27029 of 2009(O) -------------------------------------- OS.828/1999 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... PETITIONER(S): ---------------------- RADHAKRISHNAN, CHAVADY PUTHENPURAKKAL HOUSE, KATTUR MURI, KALAVOOR VILLAGE, ALAPPUZHA DISTRICT. BY ADV. MR.S.SANAL KUMAR RESPONDENT(S): ------------------------ 1. VAVA MADHAVAN, THAITHARA VELIYIL, PERUMTHURUTHU MURI, MANNANCHERRY, (DIED) 2. PRAKASAN, THAITHARA VELIYIL, PERUMTHURUTHU MURI, MANNANCHERRY. 3. SANTHA, THAITHARA VELIYIL, PERUMTHURUTHU MURI, MANNANCHERRY. 4. SOBHA, THAITHARA VELIYIL, PERUMTHURUTHU MURI, MANNANCHERRY. 5. PUSHPA,THAITHARA VELIYIL, PERUMTHURUTHU MURI, MANNANCHERRY. 6. NARAYANAN, THAITHAARA VELIYIL, PERUMTHURUTHU MURI, MANNANCHERRY. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.27029 OF 2009 -------------------------- Dated this the 30th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Pleased to call for the records relating to the Ext.P10, peruse the same, and set aside the same. ii) Issue such other writ, order or direction this Hon'ble Court deems fit in the nature and circumstances of the case. 2. Petitioner is the decree holder in E.P No.42 of 2008 in O.S No.828 of 1999 on the file of the Additional Munsiff Court, Alappuzha. Decree passed in the above suit was one for perpetual prohibitory injunction. The execution petition was W.P.(C).No.27029 OF 2009 Page numbers filed alleging violation of the decree by the judgment debtors and also seeking assistance of court for putting up of a fence on the boundaries of the plaint property, as identified in the report and plan prepared in the appeal preferred against the dismissal of the suit by the trial court. The appellate court reversing the dismissal of the suit by the trial court had granted a decree in favour of the plaintiff as prayed in the suit. The respondents entering appearance filed an application challenging the executability of the decree. They also sought for stay of execution of the decree, contending that a second appeal with a delay condonation petition has been preferred before this court. The learned Munsiff passed the impugned order dismissing the execution petition on the basis of the application moved by the judgment debtors whereunder the main relief canvassed was stay of execution of the decree with an additional prayer for dismissal of the execution petition. Without examining the question in detail, whether W.P.(C).No.27029 OF 2009 Page numbers the decree is executable or not, the court below upholding the contentions raised by the judgment debtors dismissed the execution petition is the grievance canvassed by the learned counsel for the decree holder to seek the aforementioned reliefs filing this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Having regard to the submissions made by the learned counsel for the petitioner and taking note of the facts and circumstances presented with reference to materials tendered in the writ petition, I find no notice to the respondents/judgment debtors is necessary and hence it is dispensed with. Going through Ext.P10 order passed by the learned Munsiff, I find, the disposal of Ext.P8 application moved by the judgment debtors in the manner covered by Ext.P10 order is not proper and correct. However, I am not persuaded to interfere with the order holding that the W.P.(C).No.27029 OF 2009 Page numbers executability of the decree as sought for by the decree holder cannot be granted. The decree holder sought for execution of a decree of perpetual prohibitory injunction seeking a relief of putting up boundary of his property. Fixation of the boundary had been made measuring out his property and preparing a report and plan in the appeal preferred against the dismissal of the suit and the appellate court granted a decree of injunction accepting that report and plan, is the case of the decree holder for the relief sought in execution petition. The decree granted is only for a perpetual prohibitory injunction restraining the defendants from trespassing upon the plaint property. Though the decree holder had raised an allegation that there was trespass and cutting and removal of trees by the judgment debtors specific particulars to sustain that allegation were not clearly spelt out in the execution petition. Relief canvassed for putting up of boundary is beyond the scope of the decree granted in the suit for W.P.(C).No.27029 OF 2009 Page numbers injunction. So much so, I find that the finding entered by the court below that the decree cannot be executed in the manner sought by the decree holder does not warrant any interference. However, I make it clear that the decree holder has every right to move an application under Order 21 Rule 32 of the Code of Civil Procedure in the event of any violation of the decree by the judgment debtors. Reserving his right to do so, the writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv