IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 6524 of 2009(O) --------------------------------------- AGAINST THE ORDER DATED 20/12/2008 IN EA.451/08,EP.93/2003 IN OS.341/1997 of PRINCIPAL MUNSIFF,KOZHIKODE-II .................... PETITIONER(S): -------------------------- MUHAMATH , S/O.KUTTI ALI KULAPPURATH PADIKKAL,NELLIKKODE AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. MR.NIRMAL. S RESPONDENT(S): ------------------------ 1. SYED ALAVIA JIFRIYA 28/2762, D/O.SYED FAZAL JIFRI MAB MUKHIYA NELLIKKODE AMSOM DESOM, KOZHIKODE TALUK. 2. BASHEER, AGED 41 YEARS S/O.KUTTI ALI, KULAPPURATH PADIKKAL, NELLIKKODE AMSOM DESOM, KOZHIKODE TALUK. ADV. MR.MANJERI SUNDERRAJ FOR R1 SMT.K.K.PREETHA FOR R1 SMT.VEENA HARI FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.6524/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AGREEMENT DT. 3.7.02. P2:- COPY OF THE JUDGMENT IN CRP. 901/07 DT. 25.10.07. P3:- COPY OF THE JUDGMENT DT. 4.4.08 IN WPC. 8664/08. P4:- COPY OF THE COMMISSIONER REPORT. P5:- COPY OF THE COMMISSIONER REPORT DT. 7.08. P6:- COPY OF THE JUDGMENT DT. 22.8.08. P7:- COPY OF THE AFFIDAVIT DT. 25.8.08. P8:- COPY OF THE COMMISSIONER REPORT DT. 11.11.08. P9:- COPY OF THE ORDER DT. 22.12.08 IN EA. 451/08 IN EP. NO.93/03 IN OS. 341/97, PRINCIPAL MUNSIFF II, KOZHIKODE. TRUE COPY P.A. TO JUDGE TSS S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.6524 OF 2009 (O) ----------------------------------- Dated this the 25th day of June, 2009 J U D G M E N T The writ petition is filed by the respondents in E.A.No.451/2008 in O.S.No.341/1997 on the file of the Principal Munsiff Court - II, Kozhikode. The 1st respondent filed the above suit O.S.No.341/1997 against the present petitioner and the 2nd respondent for a decree of perpetual prohibitory injunction to prevent the flow of water to her residential compound. The parties later entered into a compromise, and suit was decreed in terms of the compromise. Ext.P1 is the copy of the compromise entered by the parties. The compromise provide for two alternatives for preventing water flow to the property comprising in the residential building of the 1st respondent. The first alternative contemplated is raising the land level in the building comprising her residential building and laying of pipes for WPC.6524/09 2 free flow of water underneath a pathway. The second alternative agreed upon by the parties, if the first alternative is not found not feasible, is to make arrangements for the flow of water through the property of the petitioner by constructing drainage through that property. Pursuant to the compromise entered, it is not disputed that the land level of the property of the 1st respondent/plaintiff was raised at the expenses of the petitioner and the 2nd respondent. However, implementation of the terms of compromise agreed upon could not be carried out as disputes continued over the laying of pipes and the arrangement to be made for flow of water. The parties have approached this Court more than thrice and by way of writ petition/revision for issuing appropriate orders/directions to the court below to resolve the disputes. But the disputes in implementing the compromise still continue. An expert Civil Engineer appointed by the court below pursuant to the directions issued by this Court has reported that the first limb covered by the compromise is feasible and can be implemented. An Advocate commissioner appointed by the court below is also of the same view and he has filed a report WPC.6524/09 3 expressing such opinion before the court. When the Commissioner visited with the Civil Engineer and workers were present as arranged by the 1st defendant, his report would indicate that in the pathway four or five loads of granite stones were found parked so that the work of laying pipes could not be carried. The matter was reported before the court. Petitioner has a case that it was done by the 1st respondent to prevent the implementation of the first limb of the compromise decree. The 1st respondent thereafter approached the court and moved a petition seeking direction to implement the second limb of the compromise. The learned Munsiff has thereupon passed Ext.P9 order directing the Commissioner to resort to the second limb of the compromise if it is not possible to resort to the first limb covered by the compromise entered between the parties. Impeaching the correctness and propriety of that order, the petitioner has approached this Court filing this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. WPC.6524/09 4 2. I heard the counsel on both sides. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to the materials produced in the writ petition and also Ext.P9 order impugned, I find, unless proper and appropriate directions are issued by the court for executing the decree, the disputes are likely to continue and the decree will remain unexecuted. The parties with their eyes wide open had entered into a compromise with the terms agreed upon. No party to the compromise can be permitted to wriggle out of the terms by raising disputes which could not be countenanced with reference to the terms agreed upon in the compromise. The terms of the compromise clearly demonstrate that resorting to the second limb is permissible only if implementation of terms under the first limb is not feasible and workable. When that be so, the executing court could not have given the direction to the Commissioner to proceed with the resorting of the second limb without entertaining into a specific finding that the first limb covered by the compromise is nonworkable. That finding has to be given by the court and not by the Commissioner. If WPC.6524/09 5 the 1st defendant has got a case for any reason whatsoever that the second limb covered by the compromise alone is feasible and the first limb is unworkable, she has to produce materials before the court, and whatever her case be, the court then has to enter a definite finding thereof. In order to enable the 1st defendant to do so, if she has got such a case, an opportunity has to be extended since a compromise decree agreed upon by the parties is being executed by the court. The 1st respondent shall file a petition setting forth her case as to why the second limb of compromise alone can be implemented and the first limb of the compromise is unworkable, if she has any such case, within three weeks from the date of this judgment. If any such petition is filed after affording opportunity to the petitioner herein and the 2nd respondent to meet that case, the court below shall pass appropriate orders on that petition and enter a definite finding whether the first limb of the compromise is nonworkable. Report of the Commissioner as well as other materials produced in the execution petition shall also be taken into consideration by the court in entering a decision in WPC.6524/09 6 that matter. Further steps in the execution proceedings by the court have to be taken on the basis of the order to be passed on the petition, if any, filed by the 1st respondent within the time limit fixed by this Court. It is further directed that the court below shall expedite disposal of the proceedings. Once an order is passed in the enquiry as referred to above, the execution of the decree whether it be the first or second limb covered by the compromise decree, it shall be completed within a period of six months from the date of that order. Send a copy of this judgment to the court below forthwith. Writ petition is disposed with the above directions. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009