IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 CRP.No. 649 of 2006() --------------------- AGAINST THE ORDER IN EP.2111/2003 IN OS.188/1994 of PRL.M.C.KOZHIKODE-I .................... REVN. PETITIONER(S)/PETITIONER: -------------------------------- VAZHAPARAMBATH MOOSAKKUTTY, S/O. AHAMMADKUTTY, ILAYADATH POYIL, PANNIKKOTTOOR AMSOM, DESOM, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S)/RESPONDENTS: --------------------------- 1. VARIKKIZHATHIL PADMANABHAN MASTER, S/O. VELU, PANNIKKOTTOOR AMSOM, KOZHIKODE. 2. VARIKKIZHATHIL SANTHEESH KUMAR, S/O. PADMANABHAN NAIR, PANNIKKOTTOOR AMSOM, KOZHIKODE. 3. KIZHAKKEKKARA ATHRUMANKUTTY, S/O. IMBICHAMMU, PANNIKKOTTOOR AMSOM,KOZHIKODE. 4. THARUVAYIKUTTY, S/O.THONDIAPARAYIL KUTTU PANNIKKOTTOOR AMSOM, KOZHIKODE. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 TO R4 SRI.PRASANTH M.P FOR R1 TO R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO.2484/06 IN C.R.P.NO.649/06 DISMISSED. 29.3.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.649 OF 2006 () ----------------------------------- Dated this the 29th day of March, 2010 O R D E R Plaintiff/decree holder in O.S.No.188 of 1994 on the file of the Principal Munsiff Court – I, Kozhikode has filed this revision challenging the order passed by the learned Munsiff in his application E.P.No.211 of 2003 moved under Order XXI Rule 32 of the Code of Civil Procedure against the respondents, four in number. A decree of perpetual prohibitory injunction against the respondents was passed in the above suit in favour of the plaintiff/decree holder. Imputing violation of the decree, the plaintiff applied for proceeding against the respondents filing the above petition. An Advocate Commissioner was deputed in the proceedings, who, after conducting local inspection, filed a report. In the enquiry, the plaintiff/decree holder and a witness were examined on his side; and, one among the judgment debtors also was examined. The learned Munsiff, after CRP.649/06 2 considering the materials placed, concluded that the plaintiff/decree holder had failed to make out a case to proceed against the respondents/judgment debtors for violating the decree. Impeaching the correctness of that order, the plaintiff has filed this revision. 2. I heard the counsel for the petitioner. It is submitted that the plaintiff has at present filed a suit, O.S.No.439 of 2004, seeking a decree of mandatory injunction against the respondents to compel the respondents to put up a retaining wall over the granite foundation separating his property from the northern road. That suit is stated to be pending. In the application giving rise to this order, it is submitted, violation was imputed as the respondents had formed a road even by dumping soil over the northern granite foundation separating his property from the adjoining properties on the northern side. Some of the observations made in the order are likely to cause prejudice to the plaintiff in the pending suit, is the grievance canvassed by the counsel contending that there was misappreciation of the evidence placed by the learned Munsiff giving rise to such CRP.649/06 3 observations. The learned counsel urged for removal of such observations made in the impugned order. Whatever be the observations made by the learned Munsiff in the proceedings under Order XXI Rule 32 of the CPC, it cannot be given unmerited consideration in deciding the entitlement of the plaintiff to seek a decree of mandatory injunction canvassed for in the subsequently instituted suit. His claim in that suit has to be determined, after trial, on its merits. Subject to the above observations, the revision is closed. S.S.SATHEESACHANDRAN JUDGE prp CRP.649/06 4