IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WP(C).No. 28653 of 2009(O) -------------------------- AGAINST THE ORDER DATED 13/07/2009 IN EP 39/08 IN OS.71/1999 of MUN-MAGI COURT, PARAVOOR .................... PETITIONERS: --------------- 1. KOCHUNARAYANAN, S/O.KRISHNAN, POIKAVILA VEEDU, NEAR PARIPPALLY, KOTTAKKARATHU CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK. 2. MANI, D/O.JANAKI, K.K.HOUSE, NEAR PARIPPALLY, KOTTAKKARATHU CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK. 3. NALINI, W/O.KOCHUNARAYANAN, POIKAVILA VEEDU, NEAR PARIPPALLY, KOTTAKKARATHU CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK. 4. SARASSA, W/O.RAGHAVAN, KUNNUVILA VEEDU, NEAR PARIPPALLY, KOTTAKKARATHU CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK. 5. ASHA, D/O.SADASIVAN, JAYAMANDIRAM, NEAR PARIPPALLY, KOTTAKKARATHU CHERRY PARIPPALLY VILLAGE, KOLLAM TALUK. BY ADV. MR.RAJA VIJAYARAGHAVAN MR.R.RANJITH RESPONDENTS: --------------- 1. MOHANAN, S/O.SURENDRAN, KALLUVATHUKKAL VILLAGE, KOLLAM TALUK, FROM MELAVILA VEEDU, NEAR PARIPPALLY, KOTTAKKARATHU CHERRY, ELAMKULAM, PARIPPALLY, FOR POWER OF ATTORNEY HOLDER SREENIVASAN. (CNTD...2) WP(C).No. 28653 of 2009(O) ::2:: 2. PRATHAPAN, S/O.PACHAN, KIZHAKKE KUNNUVILA VEEDU, KOTTAKKARATHU CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK. 3. PRAKASH, S/O.RAGHAVAN, KUNNUVILA VEEDU, KOTTAKKARATHU CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK. 4. SREEDEVI, D/O.PACHAN, KIZHAKKE KUNNUVILA VEEDU, KOTTAKKARATHU CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK. 5. LEELA, D/O.JANAKI, KIZHAKKE KUNNUVILA VEEDU, KOTTAKKARATHU CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28653 of 2009 - O --------------------------------- Dated this the 12th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) to call for the records relating to Ext.P7 and quash the same by issuing a writ in the nature of certiorari. ii) To direct the learned Munsiff-Magistrate to conduct a fresh enquiry within the bounds of its authority and in accordance with law.” 2. Petitioners are some of the judgment debtors in E.P.No.39 of 2008 in O.S.No.71 of 1999 on the file of the Munsiff- Magistrate court, Paravur. The respondents in the petition are the decree holder and other co-judgment debtors. The first respondent/decree holder in whose favour a decree of perpetual prohibitory injunction was granted against the petitioners and other respondents moved the above execution petition under Order XXI Rule 32 of the Code of Civil Procedure imputing violation of that decree by them. His case was that infringing the decree some portions of his property on the southern side after demolishing a rubble wall was trespassed upon for the purpose of widening a W.P.(C).No.28653 of 2009 - O 2 pathway which had been described in the plaint as B schedule. The judgment debtors on appearance resisted the application filing objections. An advocate commissioner appointed by the court reported that the rubble wall put up separating the decree holder's property with B schedule pathway had been found demolished. Previous report of the commissioner prepared on the trial side showed the existence of a rubble wall separating B schedule pathway from the property of the decree holder. On the materials produced in the execution petition in which the decree holder was examined as PW1 and A1 to A7 were exhibited on his side, and the report prepared in the proceedings and also that prepared earlier on the trial side exhibited as C1 and C2 series the court below accepted the case of the decree holder to the extent that the decree of injunction had been violated by the demolition of the rubble wall. However, on the materials placed, the court found that there was no concrete evidence to hold that such infringement or violation of the decree was made by the judgment debtors proceeded against. That being so, they were found not condemners of the decree of injunction. Taking note that in violation of the decree the rubble wall had been demolished, the decree holder was permitted to reconstruct the rubble wall under the supervision of an advocate W.P.(C).No.28653 of 2009 - O 3 commissioner appointed by the court. Copy of the order so passed is Ext.P7. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioners. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. 4. Learned counsel for the petitioners submitted that when there is no evidence to show any infringement of the decree or infringement over the property of the decree holder by any of the judgment debtors proceeded against Ext.P7 order passed by the court below permitting the reconstruction of the rubble wall was not correct and proper. I do not find any merit in the submission of the counsel. In the given facts of the case where the court is satisfied that the decree had been violated but with no satisfactory evidence to hold that such violation was made by the judgment debtors against whom the decree was passed it is open to the court to pass such orders as are necessary to advance the ends of justice. Sub rule (5) of Rule 32 of Order XXI empowers the execution court to pass such orders “as required to be done” to satisfy the decree W.P.(C).No.28653 of 2009 - O 4 which had infringed or violated. Merely because the judgment debtors have not been shown to be the condemners liable to undergo punishment under one or two modes or both covered by that rule, detention in civil prison and attachment of property, in view of the absence of satisfactory evidence to prove their culpability in violating the injunction, it does not follow the court is powerless to pass appropriate orders as are found necessary to give effect to the decree of injunction passed in favour of the decree holder. The court has to see that appropriate remedial measures are taken so that decree passed is given effect to. In that view of the matter I find there is no impropriety or illegality in Ext.P7 order passed by the court below permitting the decree holder to put up the demolished rubble wall under the supervision of an advocate commissioner. Writ petition lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-