IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 WP(C).No.33862 of 2008(F) --------------------------------- O.S.1203/97 OF II ADDL. MUNSIFF'S COURT, ERNAKULAM .................... PETITIONERS: ---------------- 1. HOTEL MEGHA (MULLAKARIYIL TOURIST HOME) BANERJI ROAD, ERNAKULAM, A REGISTERED PARTNERSHIP FIRM REP. BY ITS MANAGING PARTNER M.J.THOMAS, S/O.JOSEPH, AGED 45, C/O.HOTEL MEGHA BANERJI ROAD, ERNAKULAM. 2. M.J.THOMAS, S/O.JOSEPH AGED 45, C/O.HOTEL MEGHA BANERJI ROAD, ERNAKULAM. BY ADV. SRI.JOHNSON MANAYANI RESPONDENT: ---------------- E.K.ISSAC, S/O.P.B.KURIAN AGED 67, RESIDING AT 3C THRIKANARVATTOM DESOM COCHIN-18. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W.P.C. No.33862 of 2008 ------------------------------------------------ Dated this the 17th day of November, 2008 JUDGMENT Petitioners are defendants in a suit filed by the respondents for recovery of a portion of the property allegedly encroached upon by the petitioners. The suit was decreed. Appeal filed by them was dismissed by the first appellate court and finally by Ext.P1 judgment in RFA.1028/03 the concurrent verdict was upheld and this Court dismissed the RFA in limine. The matter is not taken to the Apex Court. On the other hand, petitioners have filed Ext.P5 suit before the Sub Court, Ernakulam and sought for an injunction by filing Ext.P6 application restraining the respondent/decree holder in O.S.1203/97 of the Munsiff's Court, Ernakulam from enjoying the plaint 'B' schedule property as according to the petitioners, the respondent has W.P.C. No.33862 of 2008 -2- unauthorisedly encroached and occupied plaint 'B' schedule property. The claim so advanced over 'B' schedule property is submitted to have been not advanced in O.S.1203/97 and the petitioners have lost their case up to this Court as evidenced by Ext.P1. The petitioners cannot be heard to contend against the adjudication which has gone against them and restrain execution of the decree obtained by the respondent after a long legal fight up to this Court in O.S.1203/97 aforesaid. There is hence, no merit and the Sub Judge has appropriately ordered only notice on Ext.P6 injunction petition. The prayer not to demolish the alleged illegal construction as per judgment and decree in O.S.1203/97 on the file of the Munsiff's Court, Ernakulam confirmed in Ext.P1 judgment and to declare that petitioners are entitled to an ex parte interim injunction as prayed for vide Ext.P6 W.P.C. No.33862 of 2008 -3- application is not at all reliefs which this Court can countenance as the entire matter has been adjudged concurrently up to this Court as evidenced by Ext.P1 and the petitioners who were defendants in the said suit and who resisted the suit raising all contentions available to them cannot restrain execution of the decree so obtained by the respondent, by filing a fresh suit. Counsel for the petitioners submit that before the execution court the case stands posted to tomorrow to have the decree executed by deputing an Amin demolishing the portion of land trespassed upon by the petitioners as found in that suit and to demolish the constructions effected therein. He submits that an opportunity be given to the petitioners to demolish the unauthorised constructions by themselves. They may do so if they so want but at the same time, Amin or Commissioner may have to be W.P.C. No.33862 of 2008 -4- deputed to ascertain that the entire property allowed to be got recovered from the petitioners is delivered over to the decree holder after demolishing the constructions effected therein. However, to effectuate the demolition and removal by themselves the petitioners are granted two days time and delivery shall stand adjourned to 21/11/08. The petitioners shall produce a copy of this judgment forthwith before the execution court with notice to decree holder/respondent as this writ petition is being disposed of without notice to the respondent. 2. This Writ Petition is disposed of with the above directions. K.P.BALACHANDRAN, JUDGE kns/-