IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 26841 of 2010(O) -------------------------- AGAINST THE ORDER IN IA 2469/2010 IN AS.68/2010 of SUB COURT, TIRUR .................... PETITIONER: --------------- RAVUNNIKUTTY NAIR,S/O.MENASSERI ITHONA @ AMMU AMMA, AGED 68 YEARS,PERUMANNA AMSOM, KLARI DESOM, PO KLARI,TIRUR TALUK. BY ADV. SRI.TOM K.THOMAS RESPONDENTS: --------------- 1. MANAKKAMVEETTIL RAMADASAN,S/O. CHAKKU, AGED 62 YEARS,VALAVANNUR AMSOM DESOM, PO VALAVANNUR,TIRUR TALUK,PIN 676 551. 2. KADAVATH VISWANATHAN, S/O.KARAPPU ,AGED 37 YEARS, VALAVANNUR AMSOM DESOM,KALPAKANCHERY (VIA), TIRUR TALUK, PIN 676 551. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.26841 of 2010 --------------------------------------- Dated this 30th day of August, 2010 JUDGMENT Petitioner has in his favour a judgment and decree for prohibitory injunction in O.S.No.345 of 2008 of the court of learned Munsiff, Tirur. As per that judgment and decree respondents are restrained from trespassing into the suit property or worshiping there or taking usufructs therefrom. Learned Munsiff made clear that decree of injunction does not operate against members of the tarvad of petitioner whose rights are reserved as per Exts.A1 and A8 documents (marked in the trial court). Respondents preferred appeal against the judgment and decree as A.S.No.68 of 2010 of the court of learned Sub Judge, Tirur. Though, respondents wanted a stay of execution of decree that has not been granted, as petitioner asserts. Alleging that on 01-06-2010 respondents obstructed petitioner taking usufructs from the suit property, petitioner preferred a complaint to the local police but there was no action. Hence petitioner filed Ext.P1, application (I.A.No.2469 of 2010) in the appellate court seeking police assistance for enforcement of the decree. That application was dismissed by the learned Sub Judge vide Ext.P2, order observing that petitioner has W.P.C.No.26841 of 2010 2 to execute the decree if there is any violation of the decree as provided under Order XXI Rule 32 of the Code of Civil Procedure (for short, “the Code”). That order is under challenge. Learned counsel argues that appellate court alone could grant effective relief to the petitioner in whose favour there is a decree, by ordering police assistance. Learned counsel states that even under Order XXI Rule 32 of the Code it is only that the violator can be punished and that would not give effective relief to the petitioner in whose favour the decree has been passed. 2. I am unable to agree with learned counsel. There is no order passed by the appellate court which is sought to be enforced vide Ext.P1 (I.A.No.2469 of 2010). Attempt vide Ext.P1 is to enforce the decree for prohibitory injunction granted by the learned Munsiff. In so far as there is no stay granted by the appellate court nothing prevents petitioner from executing the decree if there is any violation as alleged by petitioner. I am also not inclined to think that executing court cannot grant effective relief to the petitioner. Enforcement of decree is the function of executing court and not of the appellate court where respondents have challenged the judgment and decree. In that view of the order I do not find reason to interfere with the impugned order. As there is no stay of execution of the decree, remedy of petitioner is to W.P.C.No.26841 of 2010 3 move the executing court for appropriate reliefs. Without prejudice to that right of petitioner this writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-