IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 CRP.No. 298 of 2010() --------------------- AGAINST THE ORDER DATED 19/05/2010 IN EA 555/09, EP 414/08 IN OS.968/2001 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... REVN. PETITIONERS/JUDGMENT DEBTORS/DEFENDANTS: ------------------------------------------------ 1. SARALA, W/O.DINAKARAN, THENAMTHARAYIL, PALACKAL VELIYIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 2. ASHOKAN, S/O.DINAKARAN, THENAMTHARAYIL, LAYANALAYAM, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 3. MOLY BHADRASENAN, VADAKKEPARAMBIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 4. BAIJU, S/O.DINAKARAN, SRUTHIBHAVAN, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 5. ULLAS, S/O.DINAKARAN, THENAMTHARAYAL, PALACKAL VELIYIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 6. SAJEEV, S/O.DINAKARAN, THENAMTHARAYAL, PALACKAL VELIYIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 7. JYOTHI MANOJ, KRIPA, VAYALAR MURI, VAYALAR EAST VILLAGE, ALAPPUZHA DISTRICT. 8. THILAKAN, S/O.GOPALAKRISHNAN, THENAMTHARAYIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.M.S.UNNIKRISHNAN (OASIS) RESPONDENTS/DECREE HOLDERS/PLAINTIFFS: ---------------------------------------- 1. SIVARAMAN, H/O.SANTHAMMA, THENAMTHARAYIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 2. KUMARI, D/O.SANTHAMMA, THENAMTHARAYIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 3. SAHADEVAN, S/O.SANTHAMMA, THENAMTHARAYIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. 4. AMBIKA, D/O.SANTHAMMA, THENAMTHARAYIL, CHARAMANGALAM MURI, KANJIKUZHI VILLAGE, ALAPPUZHA DISTRICT. ADV. SRI.T.JAYAKRISHNAN FOR R1-4 SRI.A.V.CHARLES FOR R1-4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.298 of 2010 --------------------------------------- Dated this 22nd day of October, 2010 ORDER The predecessor-in-interest of respondents/decree holders has obtained a decree for prohibitory injunction against petitioners in O.S.No.968 of 2001 of the court of learned Additional Munsiff, Alappuzha which reads as follows: “The plaintiff is given a decree for perpetual injunction restraining the defendants from trespassing into the plaint schedule property, committing waste and also from demolishing the boundary of the plaint schedule property. Since the defendants remain ex parte cost is not allowed.” Alleging that petitioners have not complied with the decree, they demolished the existing boundary and obstructed enjoyment of the property, respondents/additional decree holders (consequent to the death of original decree holder) filed E.P.No.414 of 2008 to execute the decree. Execution petition contained a prayer that after issuing notice to the petitioners under Rule 22 of Order XXI of the Code of Civil Procedure (for short, “the Code”) court may appoint an Advocate Commissioner or a officer of the court to measure the suit property, identify the boundaries and construct C.R.P.No.298 of 2010 : 2 : fence on the boundary of the said property (and thus enable respondents enjoy the suit property in terms of the decree). Respondents filed E.A.No.555 of 2009 to appoint an Advocate Commissioner for the said purpose. That application and execution petition were objected by petitioners on the ground that prayer in the execution petition goes beyond the scope of the decree as attempt of respondents is to get boundary of the suit property fixed under the guise of execution of decree for prohibitory injunction. Executing court rejected contentions of petitioners and allowed E.A.No.555 of 2009 vide order dated May 19, 2010. Executing court observed that fixation of boundary which is allegedly demolished by petitioners in violation of the decree for prohibitory injunction is not unrelated to the decree sought to be executed and such a relief cannot be declined on technical ground and accordingly allowed E.A.No.555 of 2009. That order is under challenge. Learned counsel for petitioners placing reliance on the decision in V. Ramaswami Aiyengar & Ors. Vs. T.N.V. Kaisala Thevar (AIR (38) 1951 SC 189) has argued that executing court cannot go beyond the decree and grant a relief which is not provided by the decree. According to the learned counsel identification of the property for fixation of boundary is not part of decree granted for prohibitory injunction and hence executing court went wrong in deputing an Advocate C.R.P.No.298 of 2010 : 3 : Commissioner to identify the property. Learned counsel for respondents has supported the impugned order. 2. As extracted above, the decree for prohibitory injunction restrains petitioners from trespassing into the suit property, committing waste therein or, demolishing boundary of the suit property. Certainly, it is on the finding that the decree schedule property lying within the boundaries mentioned therein is in the possession and enjoyment of the original decree holder that decree was granted. It is alleging that petitioners violated the decree by demolishing the boundary that respondents filed E.P.No.414 of 2008 and sought reliefs as aforesaid. True, the decree is not for fixation of boundary. It is also true that on the trial side, no survey commission was taken out to identify the property but Exts.A2, copy of survey plan was produced to show identity of the property. It is not as if executing court has no power to identify the property by deputing an Advocate Commissioner and if necessary a Surveyor. In P.N Kurian Vs. Thulasidas (2003(1) KLJ 716) this court held that executing court has the power to ascertain identity of the property and fix boundary in terms of decree even if the decree is silent about identification of the property. True that was a decree declaring title over the property and directing removal of the impugned obstruction which was put up by the defendants trespassing into C.R.P.No.298 of 2010 : 4 : the suit property. There, no identification of the property was made on the trial side. It was held that it was within the power of the executing court under Sec.47(1) of the Code to identify the property on the execution side. Another decision on the point is Velayudhan Vs. Nazareen (2004(1) KLT Case No.85 Page 64) where, referring to Sec.47 of the Code it was held that identification of the property in execution and appointing an Advocate Commissioner for the purpose is within the power of the executing court. Again, in Ajayakumar Vs. Damayanthi (2004(2) KLT 48) this court held that it is possible under Order XXI, Rule 32 of the Code to have even a decree for prohibitory injunction enforced to a practicable extent in the same way as a decree for mandatory injunction. True, that decision was rendered on the facts and circumstances of the case but, fact remains that even a decree for prohibitory injunction could be enforced by appropriate means by the executing court in exercise of its power under Sec.47 of the Code. Sec.51 of the Code deals with the power of the Court to enforce execution and clause (e) empowers the executing court to enforce the decree: “in such other manner as the nature of the relief granted may require” In the present case on the finding that deceased decree holder was in possession of the suit property and that the said property C.R.P.No.298 of 2010 : 5 : lies within the boundaries mentioned in the decree schedule the Court has granted a decree protecting that possession and restrained petitioners from interfering with its boundaries. That decree enabled the original decree holder and after him, his legal representatives to enjoy the property peacefully. Invoking Secs.47(1) and 51(e) of the Code it is within the power of the executing court to grant such reliefs as are required to enable decree holders to enjoy the fruits of the decree and for peaceful enjoyment of the property. For the said purpose, when the existing boundary is interfered, executing court can direct identification of the boundary. The decisions referred to above support that view. The decision relied by learned counsel for petitioners only say that the executing court cannot go beyond the decree. That proposition cannot be doubted. I am not inclined to think that executing court has, in the present case gone beyond the decree. 3. In the present case respondents have a contention that existing boundaries was demolished by petitioners. It is taking that also into account that the executing court ordered appointment of an Advocate Commissioner to identify the property and allow respondents put up boundary for the property. Having regard to the facts and circumstances of the case I do not find reason to interfere with the order since there is C.R.P.No.298 of 2010 : 6 : no jurisdictional error, illegality or infirmity committed by the executing court. But to allay the apprehension of petitioners that in the process of identifying the decree schedule property the property belonging to them may also be encroached by the respondents it is only appropriate that the Advocate Commissioner gets the assistance of a Surveyor as may be appointed by the executing court so that the decree schedule property can be correctly and properly identified and relief granted to the respondents. Resultantly this revision petition is disposed of directing the executing court to appoint a Surveyor to assist the Advocate Commissioner appointed as per order on E.A.No.555 of 2009 to identify the property and then grant reliefs to the respondents as prayed for in the execution petition. Advocate Commissioner and Surveyor shall prepare a plan of the decree schedule property and submit the same in court along with the report of the Advocate Commissioner. (THOMAS P JOSEPH, JUDGE) Sbna/-