IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 RSA.No. 76 of 2011() -------------------- AS.41/2008 of SUB COURT,ALAPPUZHA OS.186/2004 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS ------------------------------ 1. K.M.ABRAHAM, KAREEKKATTIL HOUSE, VELLAKINAR, CIVIL STATION WARD, ALAPPUZHA. 2. ABRAHAM MATHEW, S/O.K.M.ABRAHAM, KAREEKKATTIL HOUSE, VELLAKINAR, CIVIL STATION WARD, ALAPPUZHA. 3. PHILIP ABRAHAM, S/O.K.M.ABRAHAM, KAREEKKATTIL HOUSE, VELLAKINAR, CIVIL STATION WARD, ALAPPUZHA. BY ADV. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY RESPONDENT(S): --------------- 1. M.NAZIR, NISHI GARDENS, VELLAKKINAR, CIVIL STATION WARD, ALAPPUZHA. 2. A.RASHEEDA, W/O.M.NAZIR, NISHI GARDENS, VELLAKKINAR, CIVIL STATION WARD, ALAPPUZHA. BY ADV. SRI. AZAD BABU (CAVEATOR) FOR R1 AND R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.76 OF 2011 -------------------------------- Dated this the 20th day of January 2011 JUDGMENT Defendants are the appellants. Suit was one for prohibitory injunction. Dispute involved related to a pathway described as item No.2 in the suit. The defendants have no right, whatsoever, over that pathway and they are attempting to cut open their western boundary wall to have access to the pathway situate on the western side of their property was the case of the plaintiffs for the discretionary relief of injunction. It is the further case of the plaintiffs that flouting the order of interim injunction passed by the court, an opening was made in the western boundary wall of the defendant's property and a gate was fixed there. Negativing the contentions raised by the defendants to resist the suit claim, the trial court granted a decree in favour of the plaintiffs by which the defendants were also directed to remove the gate and close down the opening made in the western boundary wall of their property. Appeal preferred by the defendants impeaching the correctness of the decree of the trial court, was turned down by the lower appellate court after reappraisal of the materials tendered in the case. Feeling aggrieved, the defendants have preferred this Second Appeal. R.S.A No.76 OF 2011 - 2 - 2. The respondents have filed a caveat, and, notice given, they have entered appearance through counsel. At the time of hearing, the learned counsel for the appellants/defendants submitted that the defendants are conducting a kindergarten in the building situate in their property and they require a breathing period to comply with the decree concurrently passed by the two courts below. Time up to 30th April is requested for by the counsel for complying with the decree. The learned counsel for the respondents/plaintiffs has no objection in providing the grace period as requested for subject to filing of an undertaking by the appellants before the execution court where steps have been proceeded for executing the decree. Considering the submissions made, time is granted till 30th April to the appellants/defendants to comply with the directions in the decree subject to an undertaking being filed by one among them on behalf of others also, by way of an affidavit, unconditionally agreeing to comply with the decree, on or before 30/04/2011. Undertaking as indicated shall be filed by the defendants within a period of three weeks. Execution of the decree shall be kept in abeyance initially R.S.A No.76 OF 2011 - 3 - for a period of three weeks, and if an undertaking is filed, as directed, if shall not proceed till 30/04/2011. Subject to the above directions, the appeal is dismissed. Send a copy to the court dealing with the matter. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv