IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 CRP.No. 54 of 2007() -------------------- AGAINST THE ORDER IN EA 948 IN EP 147/05 IN OS.101/1992 of PRINCIPAL MUNSIFF COURT, ERNAKULAM .................... REVISION PETITIONER(S): RESPONDENT:JUDGMENT DEBTOR: ---------------------------------------------------------------------------------------------- THE CORPORATION OF COCHIN, REPRESENTED BY ITS SECRETARY. BY ADV. MR.M.K.CHANDRA MOHANDAS RESPONDENT(S): PETITIONER/DECREE HOLDER: -------------------------------------------------------------------------- PROF.C.R. PAVITHRAN, S/O.RAMAN, AGED 67, 27/19, PLOT NO.122, GIRINAGAR, COCHIN. BY ADV. MR.SANTHOSH G. PRABHU THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.N.RAVINDRAN, J. ====================================== C.R.P.No.54 of 2007 ====================================== Dated this the 6th day of February 2009 ORDER The judgment debtor in O.S.No.101 of 1992 on the file of the Court of the Munsiff of Ernakulam is the petitioner in the Civil Revision Petition. The respondent is the decree holder therein. 2. The respondent/plaintiff owns and is in possession of a parcel of land lying on the eastern side of the Thevara-Perandoor canal. The Commissioner, Corporation of Cochin issued Ext.A3 notice dated 24.12.1991 calling upon him to demolish the western compound wall for a length of 15.50 metres abutting the Thevara-Perandoor canal. On 16.1.1992 shortly after receipt of Ext.A3 notice, the respondent instituted the suit contending that there is no poramboke land in Sy.No.704/1 and that the land on which the compound wall has been put up belongs to him. He did not however produce the title deeds. The Corporation of Cochin attempted to justify their action contending inter alia that the plaintiff has put up the compound wall on the western boundary of his property trespassing into the Thevara-Perandoor canal. The trial court on an analysis of the evidence oral and documentary available in the case held that the plaintiffs' title to the suit property is not relevant in as much as the suit is one for a permanent prohibitory injunction. Since the plaintiff was found to be in possession (the said fact was not in dispute in the suit) the C.R.P.No.54 of 2007 2 trial court held that the plaintiff is entitled to the relief of injunction. The suit was accordingly decreed on 25.6.1994 restraining the defendant from demolishing the western compound wall or any other compound wall of the suit property. 3. Several years thereafter, the Institute of Social Welfare, Edappally, filed O.P.No.28312 of 2000 in this Court complaining that the Corporation of Cochin and the revenue officials are not taking steps to prevent encroachments into the Perandoor canal and to take steps to prevent discharge of effluents into the canal. On receipt of notice in O.P.No.28312 of 2000, the Corporation of Cochin which was the first respondent therein entered appearance and submitted before this Court that immediate action to evict unauthorised occupants and removal of encroachments into the Perandoor canal will be taken. It was also submitted on behalf of the Corporation that steps will be taken to prevent dumping of waste into the canal. Recording the said submission, O.P.No.28312 of 2000 was closed on 15.10.2003. While O.P.No.28312 of 2000 was pending, the Village Officer, Elamkulam Village had with the help of the Taluk Surveyor prepared a sketch of the Thevara-Perandoor canal showing the encroachments therein. The plaintiff was also shown as an encroacher into a portion of the Thevara-Perandoor canal. After O.P.No.28312 of 2000 was disposed of, the petitioner therein C.R.P.No.54 of 2007 3 filed CCC No.842 of 2004 in this Court alleging non-compliance with the undertaking made by the Corporation in this Court. It appears certain directions and orders were passed in the Contempt of Court Case and thereupon encroachments into the Thevara-Perandoor canal including the encroachment by the plaintiff were removed on 10.2.2005 by the revenue officials and the officers of the Corporation. Thereafter on 25.2.2005, the decree holder filed E.P.No.147 of 2005 under Order XXI Rule 32 of the Code of Civil Procedure praying that the execution court may be pleased to i) issue Rule 22 notice to the judgment debtor and thereafter ii) properties belonging to the Judgment Debtor may be attached and may be sold in court auction further since the judgment debtor is a Corporation, the Secretary and the Town Planning Officer of the judgment debtor may be detained in civil prison. iii) Issue Rule 37 notice to the judgment debtor arrest and detain its Secretary in the civil prison if he is not amenable to clear off the E.P. amount to the decree holder, failing which issue Rule 66 notice and thereby attach and sell the immovable property belonging to the judgment debtor. Attachment schedule will be produced during the course of the proceedings, if necessary. iv) The Secretary and the Town Planning Officer of the judgment debtor may be prosecuted for the violation of the decree by arresting and sending to civil prison and also by the attachment and sale of properties owned by the judgment debtor. 4. On receipt of notice, the petitioner entered appearance C.R.P.No.54 of 2007 4 and filed objections contending inter alia that the decree is not executable, that the execution petition is not maintainable, that the compound wall was demolished not in execution of Ext.A3 order, but pursuant to the directions issued by this Court and that they have not wilfully disobeyed the decree for injunction. The decree holder also filed E.A.No.948 of 2005 under Order XXI Rule 43 of the Code of Civil Procedure, to attach a motor car owned by the Cochin Corporation. In the execution court, an Advocate Commission was appointed to assess the damage caused to the compound wall and he filed Ext.C1 report estimate of damage at Rs.18,228/-. The Advocate Commissioner was examined as CW1 and the plaintiff was examined as PW1. By the impugned order, the execution court held that the judgment debtor has intentionally violated the decree and is therefore liable to reconstruct the compound wall at the place where it stood. It was ordered that in default, the judgment debtor shall be liable for arrest and detention and to pay compensation as assessed by the Advocate Commissioner. 5. Sri.M.K.Chandramohan Das, the learned counsel appearing for the revision petitioner/judgment debtor contends that in the facts and circumstances of the case, the finding of the execution court that the judgment debtor has wilfully violated the decree of injunction, cannot be sustained. The learned counsel C.R.P.No.54 of 2007 5 further contended that the western compound wall was demolished by the revenue officials and Corporation officials on 10.2.2005, not in implementation of Ext.A3 notice, but to comply with the directions issued by this Court in CCC No.842 of 2004. Per contra, Sri.Santhosh G.Prabhu, the learned counsel appearing for the respondent/decree holder contended that as the demolishon of the compound wall is not in dispute, the order passed by the court below does not merit interference. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. This Court has in Keeran v Mohanan & others (1980 KLT 32) and Padmanabhan v Narayanan (1987(2) KLT 260), held that action under Rule 32 of Order XXXI can be taken only if disobedience of the decree of injunction is proved to be wilful. It was held that mere proof of disobedience is not sufficient and it must be proved that the disobedience was wilful, whether it is failure to obey a mandatory injunction or violation of a decree for prohibitory injunction. It was held that only when there is wilful failure on the part of the judgment debtor, to comply with a mandatory injunction or a wilful violation of a prohibitory injunction that the execution court gets jurisdiction to take action under rule 32 of Order XXI of the Code of Civil Procedure. It was also held that violations for which there can be reasonable or plausible explanations cannot be C.R.P.No.54 of 2007 6 visited with serious penal consequences and that all the attendant circumstances coupled with the explanation of the judgment debtor will have to be considered before holding that the action or omission of the wrong doer is an invasion of the authority and dignity of the court, wilfully made. 7. In the case on hand, it is not in dispute that the execution court was alerted about the fact that the demolition was made in the wake of the undertaking given to this Court in O.P.No.28312 of 2000 and the orders passed by this Court in CCC No.842 of 2004. The decree in the instant case was passed on 25.6.1994. The compound wall was demolished by the revenue authorities on 10.2.2005, after O.P.No.28312 of 2000 was disposed of and after CCC No.842 of 2004 was filed. From the materials on record, it cannot be said that the action of the Corporation in assisting the revenue officials to evict encroachers into the Thevara-Perandoor canal was a wilful act of violation of the decree or prohibitory injunction passed in O.S.No.101 of 1993. I am therefore not persuaded to agree with the court below that the judgment debtor has wilfully and intentionally violated the decree passed by it. 8. In the view that I have taken, the order passed by the court below directing the judgment debtor to restore the compound wall by reconstructing it at the place where it originally C.R.P.No.54 of 2007 7 stood cannot be sustained. Likewise the order passed by the court below that in the event of the failure to reconstruct the compound wall, the judgment debtor shall be liable for arrest and detention and also to pay the compensation assessed by the Advocate Commissioner to the decree holder cannot also be sustained. In the result, I allow this Civil Revision Petition, set aside the impugned order and dismiss E.P.No.147 of 2005 in O.S.No.101 of 1992. The parties shall bear their respective costs. P.N.RAVINDRAN, JUDGE css/