IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 WP(C).No. 26376 of 2008(M) -------------------------- (AGAINST THE ORDER DATED 26.8.2008 IN E.A.503/2008 IN E.P.15/2000 IN O.S.201/1982 OF MUNSIFF COURT,CHAVAKKAD) .................... PETITIONER/PETITIONER/5TH RESPONDENT: ------------------------------------------------ MAYADEVI, AGED 37 YEARS, D/O. LEELAVATHY AMMA, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENTS/RESPONDENTS/PETITIONER: ------------------------------------------------ 1. SETHUMADHAVAN, S/O CHEERAKUZHY KUNJULAKSHMY AMMA, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK. 2. RADHAMMA, D/O. CHEERAKUZHY KUNJULAKSHMY AMMA, IRINGAPRAM AMSOM, THIRUVENKIDOM DESOM, CHAVAKKAD TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/09/2008,THE COURT ON 01/09/2008 DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 26376 OF 2008 ------------------------------------------ Dated this the 1st day of September, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P5 order passed by Munsiff Court, Chavakkad in E.A.503 of 2008. The case had a checkered history. A decree for mandatory injunction was granted by the Appellate Court. When the decree holder filed an execution petition and an order was passed by the executing Court, it was challenged before this Court in C.R.P.575 of 2002. Under Ext.P1 order, this Court set aside the order of the executing Court and directed the executing Court to identify the way provided under the decree and pass fresh orders. When executing Court passed Ext.P2 order, it was challenged by the petitioner in WP(C) 13313 of 2006. Under Ext.P3 order, this Court confirmed Ext.P2 order except to the extent of the drainage on the western boundary. The executing Court was directed to provide a way to the decree holders having a width of 9 feet, without excluding the width of the drainage. Thereafter an order was passed by the executing WP(C)26376/08 2 Court on 7.8.2008 fixing the pathway provided under the decree. There is no dispute with regard to the identity of the pathway so fixed. When an Amin was deputed to restore the said pathway, Amin submitted a report stating that he was obstructed by judgment debtor. The decree holder then sought police assistance. It was granted by the Court. Petitioner then filed E.A.503 of 2008, an application for permission to remove the mud from plaint B schedule property without the assistance of the police. Under Ext.P5 order the petition was dismissed. It is challenged in this petition filed under Article 227 of Constitution of India. 2. Learned counsel appearing for petitioner submitted that executing Court directing to comply the order dated 7.8.2008, posted the OP. 3. In view of the order to be passed in this petition, I do not find it necessary to issue notice to the decree holders and thereby further protract the matter. 4. Petitioner and the other judgment debtors are not entitled to cause any obstruction to the restoration of the pathway directed by the executing Court in accordance with the decree. The decree was passed by the Appellate Court. This WP(C)26376/08 3 Court under Ext.P3 judgment directed to fix the way as provided under the decree and Ext.P1 order. Subsequent to Ext.P3 judgment, executing Court fixed the way. Identity of that pathway is not now in dispute. Under order dated 7.8.2008, executing Court directed Amin to restore the said pathway. That order is not challlenged. When the Amin reported that he was obstructed, police protection was granted to execute the order. It is thereafter petitioner filed an application for permission to remove the mud. The learned Munsiff dismissed that application holding that it is a further attempt to protract the execution proceedings. 5. The argument of the learned counsel is that by the application, petitioner only sought permission to remove the mud dumped on the way as directed by the Court by order dated 7.8.2008 and when petitioner is prepared to remove the same, there is no necessity for police aid and learned Munsiff should not have dismissed the application holding that the mud is to be removed at the discretion of the decree holder. 6. Under the decree, the decree holders were not given any right over the mud which was put on the disputed way causing obstruction. By the decree the right of way for a width WP(C)26376/08 4 of 9 feet way was upheld by the Court. Decree holders are entitled to get that pathway restored. 7. The question is whether petitioner is to be permitted to remove the mud which was put on the pathway obstructing its usage. So long as the decree holders have no claim for the mud so put on the way, when the judgment debtors are prepared to remove the same, Court could have permitted the same. 8. In such circumstances, Ext.P5 order is modified permitting the petitioner to remove the mud put on the plaint B schedule way, as fixed by the executing Court as per order dated 7.8.2008 without causing obstruction to the way. But for that purpose petitioner shall not seek any adjournment. If the petitioner is prepared to remove the same on the day as now fixed by the Court, he is permitted to remove the same. If not, executing Court can execute the order passed on 7.8.2008 with police aid. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-