IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 OP(C).No. 1690 of 2011(O) ----------------------------------- E.A. No. 43/2010 IN E.P.No. 4/2009 IN O.S. No. 285/2005 of MUNSIFF COURT, PERUMBAVOOR .................... NAME AND ADDRESS OF THE PETITIONER: --------------------------------------------------------------- 1. K.M.IBRAHIM ETC, S/O.MAKKAR, KADAVIL HOUSE, PONJASSERRY P.O., VENGOLA KARA, ARAKKAPPADY VILLAGE, PIN-683 547. 2. SEENA, W/O.ABDUL AZIZ, KADAVIL HOUSE, PONJASSERRY P.O., VENGOLA KARA, ARAKKAPPADY VILLAGE, PIN-683 547. 3. K.M.KUNJU MUHAMMED, S/O.MUSTHAFA, KADAVIL HOUSE, PONJASSERRY P.O., VENGOLA KARA, ARAKKAPPADY VILLAGE, PIN-683 547. BY ADVS. SRI.M.A.ABDUL HAKHIM SRI.M.G.ANON NAME AND ADDRESS OF RESPONDENTS: ------------------------------------------------------------ 1. REV.K.GEORGE JACOB, S/O.JACOB, KUNNATH HOUSE, VENGOLA KARA, ARAKKAPPADY VILLAGE, PONJASSERRY P.O., PIN-683 547. 2. K.M.BAWA KUNJU, S/O.MAKKAR, KADAVIL HOUSE, PONJASSERRY P.O., VENGOLA KARA, ARAKKAPPADY VILLAGE, PIN-683 547. 3. K.M.ABDUL SALAM, S/O.MUSTHAFA, KADAVIL HOUSE, PONJASSERRY P.O., VENGOLA KARA, ARAKKAPPADY VILLAGE, PIN-683 547. 4. K.M. NOURUDEEN, S/O. MUSTHAFA KADAVIL HOUSE, PONJASSERRY P.O. VENGOLA KARA, ARAKKAPPADY VILLAGE, PIN 683 547 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smt K.T.SANKARAN, J. ------------------------------ O.P(C)No.1690 OF 2011 ------------------------------ Dated this the 26 th day of May, 2011 JUDGMENT Judgment debtors 1, 4 and 6 in O.S.No.285 of 2005 on the file of the Court of the Munsiff of Perumbavoor challenge the order dated 12 th April, 2011 in E.A.No.43 of 2010 in E.P.No.4 of 2009 in O.S.No.285 of 2005. 2. The suit was filed by the first respondent for mandatory injunction to restore the plaint B schedule item No.1 thodu and for permanent prohibitory injunction. The suit was decreed by the judgment and decree dated 30 th July, 2008. Since the thodu was not restored, the decree holder filed E.P.No.4 of 2009 to execute the decree. A commissioner was appointed to restore the thodu. The thodu was restored in part in the O.P(C)No.1690 OF 2011 2 presence of the Commissioner. At that time, the Commissioner was obstructed by the judgment debtors. The Commissioner filed a report before the court. Police aid was ordered for execution of the work. At that juncture, judgment debtors 1, 4 and 6 filed E.A.No.43 of 2010 for a direction to the Commissioner to execute the work only after identifying the plaint B schedule item No.1. The contention of judgment debtors 1, 4 and 6 is that the plaint B schedule item No.1 was not identified by the Commissioner at the trial stage and therefore, without identifying the same, the decree cannot be executed. 3. The Executing Court considered the contention put forward by the petitioners and rejected E.A.No.43 of 2010. The Executing Court held that the identity of plaint B schedule item No.1 was disputed by the defendants in O.P(C)No.1690 OF 2011 3 the suit and the court passed the decree after identifying the property in question. In the execution proceedings, the judgment debtors cannot be allowed to put forward a contention which could be taken only at the trial of the suit or in an appeal from the decree. In execution, the petitioners are not entitled to challenge the validity of the decree or to contend that the decree was passed without properly adverting to the documentary and oral evidence in the case. The judgment in the case would clearly indicate that the court passed the decree only after identifying the property in question. 4. The learned counsel for the petitioners submitted that a perusal of the Commissioner's report in the suit would show that no thodu was in existence. He also referred to various other portions in the Commissioner's report. These contentions cannot be O.P(C)No.1690 OF 2011 4 considered in execution. Taking into account the Commissioner's report and the oral and documentary evidence in the case, the trial court decreed the suit after finding that plaint B schedule item No.1 thodu was filled by the defendants as alleged by the plaintiffs. Accordingly, a decree for mandatory injunction was passed. 5. The judgment debtors tried their level best to obstruct the execution of the decree. They even caused obstruction to the work done by the Commissioner. Even after restoration of a portion of the thodu by the Commissioner, the judgment debtors again filled the same. These facts would indicate that the petitioners have no respect for law or for any order or decree passed by the court. They put forward all sorts of contentions to protract the proceedings and to delay the O.P(C)No.1690 OF 2011 5 execution of the decree. The Executing Court rightly rejected their contentions. No grounds are made out for interference under Article 227 of the Constitution of India. The order passed by the court below is legal and proper. For the aforesaid reasons, the Original Petition is dismissed. K.T.SANKARAN, JUDGE. cms