IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 WP(C).No. 32225 of 2003(J) -------------------------- PETITIONER: ------------------- MANOHARAN, T.C. 31/277, MUDUMPIL VEEDU, CHACKAI, THIRUVANANTHAPURAM. BY ADVS. SRI.M.R.ANANDAKUTTAN SRI.B.SATHIQ RESPONDENTS: ---------------------- 1. PONNAMMA, MUDUMPIL VEEDU, CHACKAI, THIRUVANANTHAPURAM. 2. JALAJAMONI, MUDUMPIL VEEDU, CHACKAI, THIRUVANANTHAPURAM. R2 BY ADV. SMT.S.A.SHERLY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32225 of 2003(J) -------------------------------------- ORDER ON IA NO.13795& 14966/2003 IN WP(C) NO.32225/2003 ALLOWED 28.2.2011 Sd/- HARUN-UL-RASHID, JUDGE / TRUE COPY / P.A. TO JUDGE WP(C).No. 32225 of 2003(J) -------------------------------------- APPENDIX ----------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE ORDER IN E.P.1/97 IN O.S. 2478/91 DATED 30.1.03 OF THE 1ST ADDITIONAL MUSIFF COURT, THIRUVANANTHAPURAM. EXT.P2. COPY OF THE DECREE IN O.S. 2478/91 DATED 30.6.94 OF THE ADDL. MUNSIFF COURT, TRIVANDRUM. EXT.P3. COPY OF THE DECREE IN O.S. 1325/95 DATED 18.10.99 OF THE PRINCIPAL MUNSIFF COURT, TRIVANDRUM. EXT.P4. COPY OF JUDGMENT DATED 30.6.1994 IN O.S. 2478/91 OF THE 1ST ADDL. MUSIFF'S COURT, TRIVANDRUM. EXT.P5. COPY OF JUDGMENT DATED 18.10.1999 IN O.S. 1325/1995 OF THE PRINCIPAL MUNSIFF, TRIVANDRUM. RESPONDENT'S EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 32225 OF 2009 ------------------------------- DATED THIS THE 28TH DAY OF FEBRUARY, 2011 JUDGMENT Plaintiff in O.S.No.2478/91 on the file of the Ist Additional Munsiff's Court, Thiruvananthapuram is the petitioner herein. He is the decree holder and the petitioner in E.P.No.1/97. The suit was decreed on 30/6/2994. The decree passed by the court below is as follows: “In the result, the suit is decreed as follows:- Without prejudice to the right of the defendants to make any construction at the eastern side of the foundation now in existence, the defendants are restrained from trespassing into the pathway portion having a width of thirty one inches, from making any construction into the said pathway portion and from obstructing the use of the said pathway portion by the plaintiff for ingress and egress to the plaint A schedule property including the taking of scooter through the pathway. The Ext.C2 sketch will be appended to the decree for easy reference. In the circumstances of the case, the parties are directed to bear their respective costs.” 2. The decree has become final. The decree holder filed -2- WP(C).No.32225/2003 E.P.No.1/97. Ext.P1 is the order passed by the lst Additional Munsiff's Court, Thiruvananthapuram. By Ext.P1 the court below dismissed E.P.No.1/97 holding that the decree in O.S.No.2478/91 has become in-executable in view of Ext.B2 decree in O.S.No.1325/95 passed by the Principal Munsiff's Court, Thiruvananthauram. This writ petition is filed for the following reliefs:- “set aside the order of the Ist Additional Munsiff's Court in E.P.No.1/97 in O.S.No.2478/91 dated 30/1/2003 and direct the execution court to execute the decree as envisaged in O.S.No.2478/91 of the I Additional Munsiff's Court, Thiruvananthapuram.” 3. The petitioner obtained decree in O.S.No.2478/91. The decree was for prohibitory injunction restraining the judgment debtors from reducing the width of the plaint schedule property, which is having a width of thirty one inches. The petitioner filed execution petition stating that the width of the plaint property is reduced to 26 inches from 31 inches by the judgment debtors by constructing a compound wall on the western side of their -3- WP(C).No.32225/2003 property. Therefore, it is prayed that the said compound wall is to be demolished by execution of the decree. 4. The 2nd judgment debtor is the plaintiff in O.S.No.1325/95 filed against the decree holder. The suit property in O.S.No.1325/95 is 1 ½ cents. The plaintiff's 4.5 cents of land is lying on the north of 1 1/2 cents. The disputed pathway is lying on the west of the said 1/2 cents. The disputed pathway leads to the property of the decree holder. The aforesaid 1 ½ cents is the plaint A schedule property in O.S.No.1325/1995 filed by the second judgment debtor and plaint B schedule property is the disputed pathway. The decree holder is the defendant in the said suit. The decree holder was prohibited by the decree in O.S.No.1325/95 from demolishing the western compound wall of the property of the 2nd judgment debtor, who is the plaintiff in the suit, and he is also restrained from committing any act of trespass into the property of the 2nd judgment debtor. The boundary is dividing 1 ½ cents and in the pathway a compound wall is constructed by the 2nd judgment debtor, who is the plaintiff in -4- WP(C).No.32225/2003 O.S.No.1325/1995. Exts.B1and B2 are the decree and judgment in O.S.No.1325/1995. In that case, the decree holder contended that the 2nd judgment debtor encroached a portion of the pathway and reduced its width. The contention was considered by the trial court and held that there is no evidence adduced by the decree holder, who is the defendant in O.S.No.1325/95, to prove that the compound wall was constructed by committing trespass into any portion of the pathway. The trial court granted a decree in favour of the 2nd judgment debtor declaring title over the plaint A schedule property in that suit and also granted consequential injunction against the decree holder (petitioner herein) restraining him from demolishing the western compound wall of the property and from committing any act of trespass into the paint A schedule property. The said decree and judgment (Exts.B1 and B2) produced as Exts.P3 and P5 in this writ petition, have become final. 5. The appeal preferred by the present decree holder against Exts.B1 and B2 was dismissed confirming the findings of the trial court. Subsequently, the decree holder filed -5- WP(C).No.32225/2003 S.A.No.1362/2004. This Court on 25/2/2011 heard the second appeal and dismissed the same. Thus, the decree passed against the present decree holder has become final. 6. The learned Munsiff has only referred to Exts.B1 judgment and B2 decree. By this time Exts.B1 and B2 attained finality by the dismissal of the first appeal and the second appeal. The learned Munsiff in Ext.P1 order held that in view of the finality of Exts.B1 judgment and B2 decree, the present decree is not executable and E.P.No.1/97 filed by the decree holder is dismissed. The dismissal of the execution petition is challenged by the decree holder raising several grounds. I am unable to accept the grounds raised. In the circumstances, the contentions raised by the decree holder is repelled for valid reasons. Writ Petition is without any merit and accordingly dismissed. HARUN-UL-RASHID, Judge. kcv.