IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 WP(C).No. 34712 of 2008(G) -------------------------- OS.1/2001 of PRL.M.C.,TRIVANDRUM .................... PETITIONER(S): ------------------------- GIRIJA KUMARI.S, T.C.5/422, G.C.NAGAR, MANNAMMOOLA, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. MR.BIJU BALAKRISHNAN RESPONDENT(S): --------------------------- 1. RAJENDRAN, S/O.KUNJUKRISHNAN, SHARMILA VILASOM, THURUTHUMOOLA MURI, PADMAVILASOM LANE, PEROORKADA, THIRUVANANTHAPURAM. 2. SHARMILA, W/O.RAJENDRAN, SHARMILA VILASOM, THURUTHUMOOLA MURI, PADMAVILASOM LANE, PEROORKADA, THIRUVANANTHAPURAM. 3. ANILKUMARAN NAIR, S/O.MADHUSOODANAN NAIR, T.C.5/722 (1),PADMAVILASOM LANE, PEROORKADA, THIRUVANANTHAPURAM. 4. JAYAN, S/O.SHANMUGAM ASARI,T.C.5/748, PADMAVILASOM LANE, PEROORKADA, THIRUVANANTHAPURAM. 5. T.SURESH, SHARMILA VILASOM, THURUTHUMOOLA MURI, PADMAVILASOM LANE, PEROORKADA, THIRUVANANTHAPURAM. R1 & R2 BY ADVS. MR.MOHAN JACOB GEORGE, SMT.P.V.PARVATHI, SMT.REENA THOMAS, SRI.L.RAM MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34712/2008 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE DECREE DTD. 11/08/2006 IN O.S.NO.1 OF 2001 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. P2: COPY OF THE E.P.NO.106 OF 2007 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. P3: COPY OF THE OBJECTION DTD. 28/07/2007 OF THE RESPONDENTS 1 AND 2. P4: COPY OF THE ORDER DTD. 29/10/2007 IN E.P.NO.106 OF 2007. P5: COPY OF THE ORDER DTD. 11/12/2007 IN E.A.1088 OF 2007. P6: COPY OF THE FINAL REPORT DTD. 30/01/2008 OF THE ADVOCATE COMMISSIONER. P7: PHOTOSTAT COPY OF THE E.A.NO.224 OF 2008. P8: PHOTOSTAT COPY OF THE OBJECTION DTD. 06/03/2008. P9: COPY OF THE ORDER DTD. 07/11/2008 IN E.A.NO.224 OF 2008 ON E.P.NO.106 OF 2007 IN O.S.NO.1 OF 2001 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: R2(A): COPY OF ROUGH PLAN SHOWING THE LIE OF THE PROPERTIES OF THE WRIT PETITIONER, THIS RESPONDENT NO.2 ETC. R2(B): COPY OF THE JUDGMENT DTD. 24/09/2003 IN O.S.NO.386/2000 OF 1ST ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. R2(C): COPY OF THE DECREE DTD. 24/09/2003 IN O.S.NO.386/2000 OF 1ST ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. R2(D): COPY OF THE COMMISSIONER'S PLAN. R2(E): COPY OF THE COMMISSIONER'S REPORT. R2(F): COPY OF THE PLAINT IN O.S.NO.1/2001 OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM. R2(G): COPY OF THE JUDGMENT DTD. 11/08/2006 OF THE PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM IN O.S.1/2001. /TRUE COPY/ P.A.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 34712 OF 2008 G ```````````````````````````````````````````````````` Dated this the 15th day of July, 2009 J U D G M E N T The writ petition is filed seeking the following relief:- “ Issue a writ of certiorari or any other appropriate writ, order or direction to set aside and cancel Ext.P9 order dated 7.11.2008 in EA.No.224 of 2008 on EP.No.106 of 2002 in OS.No.1 of 2001 on the file of the Principal Munsiff Court, Thiruvananthapuram.” 2. Petitioner was the 5th defendant in OS.No.1/2001 on the file of the Principal Munsiff Court, Thiruvananthapuram. Suit was originally filed by the plaintiff therein as against four defendants including the present respondents in the writ petition, who were the 1st and 2nd defendants in that suit. Suit was one for injunction and putting up boundary. In that suit, petitioner got herself impleaded as the 5th defendant and raised a counter claim. Later, suit was compromised as between the 2nd plaintiff and the petitioner, the 5th defendant. Suit was dismissed as against the other defendants. A compromise decree was passed in terms of WPC.34712/08 : 2 : the compromise entered into by the 2nd plaintiff and the 5th defendant. Pursuant to passing of the compromise decree, the boundaries were put up in execution of that decree through an Advocate Commissioner appointed by the court. Respondents 1 and 2 herein thereupon moved an application under section 47 CPC before the execution court contending that the boundary walls have been put up encroaching upon their property demolishing a latrine and at boundaries for which no decree was provided in the suit. The learned Munsiff proceeded with an enquiry into the matter and after such enquiry the impugned order was passed directing demolition of the boundaries put up on FGHIJ line which was put up in the presence of the Commissioner, for which no decree was provided. The 1st and 2nd respondents had a further case that the latrine in their property was demolished in putting up the boundary wall, for which the court found there was no concrete evidence and the relief claimed thereunder was disallowed. The petitioner was directed to remove the compound wall which had been put up with the assistance of the Commissioner and the Amin within one month from the date of the WPC.34712/08 : 3 : order, in default of which respondents 1 and 2 were granted permission to get it removed through the court realising the cost thereof from the petitioner. Ext.P9 is the copy of the order passed as above by the court below. Impeaching the propriety and correctness of that order, petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. Having regard to the submissions made and the facts and circumstances presented with reference to the materials tendered in the writ petition, I find there is no impropriety or illegality in the order passed by the learned Munsiff directing for removal of the compound wall put up in FGHIJ line by the petitioner with the assistance of the Advocate Commissioner and the Amin in execution of the compromise decree in which the 1st and 2nd respondents were not parties and further the suit in which such compromise was entered had been dismissed as against them. The court below has found that a compound wall in the FGHIJ line was put up under the guise of the decree that too arrived on compromise between the petitioner with the 2nd plaintiff and not WPC.34712/08 : 4 : with the 1st and 2nd respondents who were also among the co- defendants in the suit. The order would also disclose that the putting up of the boundary was done with the assistance of police in the presence of the Commissioner and Amin deputed by the court. Petitioner has to thank herself that no action was taken by the court for abusing the process of the court in putting up boundaries on FGHIJ line for which no decree was provided and that too after getting assistance and in the presence of a Commissioner and Amin deputed by the court. I do not find any merit in the writ petition, and it is dismissed. (S.S. SATHEESACHANDRAN, JUDGE) aks