IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 11487 of 2008(P) -------------------------- AGAINST THE ORDER DATED 19/03/2008 IN EP. 760 /1994 IN OS.1385/1988 of PRL.M.C.,ERNAKULAM .................... PETITIONER/RESPONDENT/JUDGMENT DEBTOR: ----------------------------------------------------- PURUSHOTHAMAN, S/O. PAPPU, MADATHIPARAMBIL,KUNDANNOOR DESOM, MARADU VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS/PETITIONERS/DECREE HOLDERS: ------------------------------------------------------ 1. VILASINI AMMA, D/O. MEENAKSHI AMMA, KADEKUZHI, KKUNDANNOOR DESOM, MARADU VILLAGE, KANAYANNUR TALUK. 2. SARASWATHI AMMA, D/O. MEENAKSHI AMMA, KADEKKUZHI, KUNDANNOOR DESOM, MARADU VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.M.P.RAMNATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/04/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 11487 OF 2008 --------------------- Dated this the 4th day of April, 2008 JUDGMENT This writ petition is preferred with a prayer to set aside Ext.P5. Ext.P5 is an order passed by the Principal Munsiff, Ernakulam, in EP 760/94 in OS 1385/88, whereby the executing court granted permission to the decree holders to reconstruct the destroyed portions of compound wall and fence of the plaint schedule property with the aid of police and under the supervision of the Commissioner, Sri. V.A.Ajayakumar. The decree is passed as early as on 30.3.91 in a suit for injunction. The grievance of the decree holders is that a portion of the compound wall and a portion of the fence has been forcibly removed by the judgment debtor in the year 1994 and that there has been other litigations as well and therefore they had interfered with the decree passed by the civil court and moved applications for punishment under Order XXI Rule 32 and also seek permission to construct the compound wall and fence. There was a commissioner's report in the matter and the court below considered the entire matter from para 8 onwards of the order. It is seen from the Commissioner's report that the fence having a length of 2.02 metre as well as the compound wall having a length of 3.47 metre were destroyed. In the Commissioner's report it is stated that a new pathway has been created through the decree WPC NO 11487/08 2 holders' property and further the court found that the destruction was found by the Commissioner as early as on 20.7.94. 2. Learned counsel for the petitioner argues before me that the Commissioner's report is not acceptable and further that the property has not been properly identified and therefore the order passed by the court below cannot be accepted. Learned counsel would invite my attention to the boundaries of the property on the western side where it is described as defendant's property and properties in Sy. No. 411/2. At the time of inspection, it is seen that there is property in Sy. No.411/6. This a matter that has been reported by the Commissioner . The Commissioner has stated that Survey No. 411/6 was originally a part of Sy. No.411/2 itself and it is a new sub-division of Sy.No.411/2. So just because a new survey No.411/6 is shown there cannot be any dispute with respect to the identification of the property. Even otherwise, from the contentions raised in the suit, the case of the defendant was that he was having a right of way over the plaintiffs' property and there is no other property in between the plaintiffs' and defendant's property. Therefore the alleged way can be only a part and parcel of the plaintiffs' property. The court after adjudication found that there is no such way and the plaintiffs are entitled to a decree for injunction. So there cannot be any dispute regarding the identification of the property at all. According to the defendant the way which he claims only runs through the plaintiffs' property. In such a situation the question of WPC NO 11487/08 3 identity raised at a belated stage without any basis need not be accepted. The court below found that the contention itself is incorrect as well. So the court in the light of Commissioner's report found that it is the plaint schedule property. After the decree a portion of the fence as well as the compound wall has been demolished. When it is done and as the plaintiffs are armed with a decree necessarily the property, which the plaintiffs are entitled to and which has been interfered with, has to be restored back to them and therefore the court below granted permission to construct the broken compound wall as well as the fence. I do not find any illegality, irregularity or perversity in the order passed by the court below, which calls for interference. The writ petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 11487/08 4 WPC NO 11487/08 5