IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P JOSEPH WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 WP(C).No. 19948 of 2010(O) -------------------------- AGAINST THE ORDER IN EP 23/09 IN OS.530/2005 of ADDL.MUNSIFF COURT,NEDUMANGAD .............................................. PETITIONER: ------------------ V.SASIDHARAN NAIR ADIYILA VEEDU, VALIYARA, VELLANAD PO THIRUVANANTHAPURAM -695 543. BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR RESPONDENT: ------------------- V.J.GEORGE PRINCE MANSION ,KULACODE, VELLANAD PO, THIRUVANANTHAPURAM- 695 543. BY ADVS. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JM WPC NO. 19948 OF 2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF JUDGEMENT DT. 22.8.2006 IN O.S. NO. 530/2005 OF THE ADDITIONAL MUNSIFF, NEDUMNGAD. P2: COPY OF REPORT AND SKETCH PREPARED BY THE ADVOCATE COMMISSIONER IN O.S. NO.530/2005 P3: COPY OF ORDER DT. 9.4.2010 IN E.P. NO. 3/2009 IN O.S. NO. 530/2005 OF ADDITIONAL MUNSIFF, NEDUMANGAD RESPONDENT'S EXHIBITS: NIL \\ TRUE COPY\\ PA TO JUDGE JM THOMAS P.JOSEPH, J. ==================================== W.P(C) No.19948 of 2010 ==================================== Dated this the 14th day of December, 2011 J U D G M E N T Petitioner is the 4th judgment debtor in E.P. No.23 of 2009 in O.S. No.530 of 2005 of the court of learned Additional Munsiff, Nedumangad. Respondent obtained a decree for prohibitory injunction against petitioner and others trespassing into his property and widening the public road. Respondent filed E.P. No.23 of 2009 alleging that petitioner violated the decree. Evidence was taken and the executing court found that petitioner has violated the decree. Thereon executing court passed Ext.P3, order allowing respondent to recover Rs.12,000/- from petitioner and his assets by way of damages. Petitioner was directed to restore the decree schedule property to its original position. He was also directed to be detained in civil prison for a period of two months. That order is under challenge. 2. It is contended by learned counsel that there is no sufficient evidence to show that petitioner has violated the decree. Learned counsel for respondent submitted that even after the impugned order there was continued violation at the instance of W.P(C) No.19948 of 2010 -: 2 :- petitioner. 3. Though Ext.P1, decree was passed ex parte it remains in force and it is required to be obeyed. It is not very much in dispute that the road was widened making use of a portion of property of the respondent, the case pleaded by petitioner being that it was done by the local people to avert accidents at the curve. 4. Regarding the alleged violation respondent gave evidence as P.W.1. P.W.2 is a witness who claimed to have seen the incident. P.W.3 is the Advocate Commissioner who inspected the property on 20.03.2009. Report and evidence of P.W.3 is that at the time P.W.3 inspected the property petitioner and others were found engaged in removing soil from the suit property using JCB. 5. So far as the alleged violation is concerned there is sufficient evidence given by the respondent. Even the evidence of Advocate Commissioner shows that petitioner was actively engaged in removing soil from the suit property. Fact of violation of the decree is established and there is no reason to interfere with the finding of the executing court to that effect. 6. When this Writ Petition was admitted I directed W.P(C) No.19948 of 2010 -: 3 :- petitioner to deposit Rs.12,000/- in the executing court. It is submitted that the said amount is deposited. As per Ext.P3, order the amount is allowed to be realized by the respondent. Hence the said amount should go to the respondent. 7. Next question is whether the order for detention of petitioner in the civil prison must be retained. Executing court has directed petitioner to restore the decree schedule property to its original position. There is no reason to interfere with that order also. But having regard to the circumstances stated detention of petitioner in the civil prison is required only if petitioner does not comply with the direction of the executing court to restore the suit property. To that extent the impugned order is required to be modified. Writ Petition is disposed of as follows: (a) Exhibit P3, order is modified to the extent that petitioner need undergo detention in the civil prison only if he fails to comply with the order for restoration of the suit property to its original position as directed by executing court. W.P(C) No.19948 of 2010 -: 4 :- (b) Petitioner shall do so within two months from this day failing which he shall undergo detention as directed by the executing court. (c) Respondent is permitted to withdraw the sum of Rs.12,000/- (Rupees Twelve thousand only) deposited by petitioner in the executing court. (d) Restoration of property shall be done in the presence of an Advocate Commissioner preferably P.W.3, if he is available, to be appointed by the executing court at the expense of petitioner. (e) Advocate Commissioner shall submit a report in the executing court regarding restoration done by the petitioner as aforesaid. THOMAS P. JOSEPH, JUDGE. vsv