IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 OP(C).No. 535 of 2010(O) ------------------------ AGAINST THE ORDER DATED 03/07/2010 IN EP.46/2009 IN OS.4/2005 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER :- -------------------- NANU ACHARY,AGED 74 YEARS, S/O.SANKARAN, PUTHUPARAMBIL, MUNDUKOTTAL BHAGOM, PAIPADU VILLAGE, PALLICKACHIRA KAVALA P.O., CHANGANACHERRY - 686 537. BY ADV. SRI.MATHEW PHILIP EDAPPALLIL RESPONDENT(S) :- ------------------------- 1. P.D.THOMAS, AGED 70 YERAS, S/O.DEVASIA, PANATTIL HOUSE, MUDUKOTTAL BHAGOM, PAIPADU KARA, PALLICKACHIRA KAVALA P.O., CHANGANACHERRY TALUK (DECEASED) 2. SOSAMMA, W/O.P.D.THOMAS, RESIDING AT PANATTIL HOUSE, PALLICKACHIRA KAVALA P.O., PAIPADU MURI, PAIPADU VILLAGE, CHANGANACHERRY TALUK, PALLICKACHIRA KAVALA P.O., CHANGANACHERRY - 686 537. 3. SEBASTIAN P.T, S/O.P.D.THOMAS, RESIDING AT PANATTIL HOUSE, PALLICKACHIRA KAVALA P.O., PAIPADU MURI, PAIPADU VILLAGE, CHANGANACHERRY TALUK, PALLICKACHIRA KAVALA P.O., CHANGANACHERRY - 686 537. 4. MATHEWS P.T, S/O.P.D.THOMAS, RESIDING AT PANATTIL HOUSE, PALLICKACHIRA KAVALA P.O., PAIPADU MURI, PAIPADU VILLAGE, CHANGANACHERRY TALUK, PALLICKACHIRA KAVALA P.O., CHANGANACHERRY - 686 537. OP(C).No. 535 of 2010 5. MOLLY SHAJI EAPPEN,W/O.SHAJI EAPPEN, RESIDING AT KEERUVALLIL HOUSE, LAIKKADU P.O., PAIPPADU VILLAGE. 6. ANIAMMA SAJI, W/O.SAJI, RESIDING AT THOTTATHIL HOUSE, EDATHUVA VILLAGE, EDATHUA KARA, EDATHUA P.O. - 689 573, ALAPPUZHA DISTRICT. ADV. SRI.M.P.MADHAVANKUTTY FOR R2 SRI.GOKUL DAS V.V.H. FOR R2 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt OP(C).No. 535 OF 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the plaint in O.S.No.4/05 before Munsiff Court, Changanacherry. Ext.P2 :- Copy of the Commission Report in O.S.No.4/05 before Munsiff Court, Changanacherry. Ext.P3 :- Copy of the Partition Deed No.3321/04 before SRO Thengana. Ext.P4 :- Copy of the Written Statement in O.S.No.4/05 before Munsiff Court, Changanacherry. Ext.P5 :- Copy of the Judgment dated 24.1.08 in O.S.No.4/05 before Munsiff Court, Changanacherry. Ext.P6 :- Copy of the E.P.No.46/09 in O.S.No.4/05 before Munsiff Court, Changanacherry. Ext.P7 :- Copy of the Commission Report in E.P.No.46/09 in O.S.No.4/05 before Munsiff Court, Changanacherry. Ext.P8 :- Copy of the deposition dated 26.5.2010 in E.P.No.46/09 before Munsiff Court, Changanacherry. Ext.P9 :- Copy of the Order in E.P.No.46/09 of the Munsiff Court, Changanacherry. Ext.P10 :- Copy of the I.A.1760/10 in O.S.4/05 before Munsiff Court, Changanacherry for setting aside ex-parte decree. Ext.P10(a) :- Copy of the I.A.No.1761/10 in O.S.4/05 for condoning delay. Ext.P11 :- Copy of the settlement deed No.178/03 before SRO, Thengana. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ O.P.(C). No.535 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 6th day of July 2011 J U D G M E N T This original petition is filed by the Judgment Debtor challenging Ext.P9, order dated July 3, 2010 in E.P.No.46 of 2009 in O.S.No.4 of 2005 of the court of learned Munsiff, Changanacherry. As per the impugned order petitioner is directed to undergo detention in the civil prison for 15 days and pay compensation of `15,000/-. According to the petitioner, Ext.P9 order is illegal and is liable to be quashed. It is also contended that property regarding which execution was levied did not belong to the respondents. 2. As per the ex-parte decree in favour of respondents, petitioner is restrained from committing waste in item No.3, pathway. Respondent filed E.P.No.46 of 2009 and the executing court appointed an Advocate Commissioner for removal of the obstruction allegedly O.P.(C). No.535 of 2010 -: 2 :- caused by petitioner on the said pathway. Commissioner removed the obstruction and submitted report. Respondents alleged that petitioner has willfully disobeyed the decree. Commissioner was examined as CW1 and Exts.A1 to A4 and C1 were marked. Based on that evidence, executing court found that petitioner has willfully disobeyed the decree and accordingly, passed Ext.P9 order. 3. Though various contentions are raised in this original petition even to the extent of disputing right of respondents over the decree schedule property, since challenge is to Ext.P9, order what is required to be considered is only whether executing court was right in directing petitioner to undergo detention in the civil prison and pay compensation. 4. The object of Rule 32 Order XXI of the Code of Civil Procedure is enforcement of the decree (for prohibitory injunction). Executing court has power to direct detention of Judgment Debtor who has refused to comply O.P.(C). No.535 of 2010 -: 3 :- with the decree or willfully disobeyed it until the decree is obeyed. In the case on hand, obstruction on item No.3 pathway has already been removed. In the circumstance detention in the civil prison or payment of compensation is not required. This view gets support from Narayani v. Thankappan [1991 (2) KLT 704]. Resultantly this original petition is allowed. Ext.P9, order directing petitioner to undergo detention in the civil prison and pay compensation is quashed. THOMAS P. JOSEPH, JUDGE. Jvt