Cheriyan, Saji and Aleyamma vs Balakrishnan and Others

Thomas P. Joseph, J.—This Writ Petition is in challenge of Ext.P5, order dismissing E.P. No. 31 of 2003 in O.S. No. 303 of 1992 of the court of learned Munsiff, Kattappana. Petitioners obtained an exparte decree on 21.01.1995 against respondents for removal of plaint B schedule shed from plaint A schedule within a month from the date of judgment and decree and for prohibitory injunction restraining respondents from making further constructions in plaint A schedule. Petitioners filed E.P. No. 31 of 2003 praying for removal of the impugned structure allegedly situated in plaint A schedule and to order detention of respondents in civil prison for alleged willful violation of the decree. Later, alleging that after the decree respondents made further constructions in plaint A schedule, petitioner got the prayer in E.P. No. 31 of 2003 amended vide order on E.A. No. 5 of 2005. Respondents filed objection to the execution petition. According to them, there was no violation and execution petition is not specific as to the manner of violation and hence detention in civil prison could not be ordered under Rule 32 of Order XXI of the CPC (for short, "the Code"). Respondent No. 7 has filed a counter contending that he was a minor, not represented by a guardian in the suit and that the decree against him is not valid. Considering the objections raised by the respondents, an Advocate Commissioner was appointed who submitted a report and sketch. Advocate Commissioner was examined in the executing court as PW4. The Advocate Commissioner who had submitted report and sketch on the trial side was examined as PW3. PW 1 is petitioner No. 1 and PW2 is a independent witness to prove alleged violation. Executing court found that prayer in the execution petition for removal of structures is barred by limitation since execution petition is filed beyond three years of the decree. So far as violation of the decree for prohibitory injunction is concerned, executing court was of the view that there are not sufficient averments in the execution petition to proceed against respondents. That resulted in Ext.P5, order dismissing the execution petition. Learned Counsel for petitioners contend that though in the execution petition details of violation were not stated petitioners had filed an additional affidavit dated 10.02.2005 which contained necessary averments on which executing court had to proceed for violation as pleaded by petitioners. It is contended that it is sufficient that by supplementary affidavit necessary averments are made. Reliance is placed on the decision in Padmakshi Amma v. Hashim 1999 (1) KLT 96. Learned Senior Advocate for respondents contend that so far as dismissal of the execution petition to the extent it concerned mandatory injunction is concerned, there could be no challenge to the order since execution petition was admittedly filed beyond three years of the date of decree and Article 135 of the Limitation Act (for short, "the Act") governed situation. So far as the alleged violation of decree for prohibitory injunction is concerned learned Senior Advocate contends that it is not identified that the impugned construction (allegedly made after the decree) was made in plaint A schedule and even going by the averments in the plaint B schedule construction was made in a portion of puramboke land as well and since the additional construction if any was made in puramboke land petitioners have no reason to be aggrieved. Learned Senior Advocate has referred me to the evidence of PW4 (Advocate Commissioner) that he was not able to say whether the impugned constructions are made in plaint A schedule or puramboke land.

So far as Ext.P4, order to the extent it related to mandatory injunction is concerned, there can be no challenge for, the decree was passed on 21.01.1995 and the execution petition was filed on 15.09.2003 for execution of the decree for mandatory injunction. That execution petition having been filed beyond three years prescribed under Article 135 of the Act, the impugned order to the extent that executing court refused to execute decree for mandatory injunction has to stand.

What remained is only the prayer for detention of respondents in civil prison and removal of constructions allegedly made after the decree was passed and allegedly in plaint A schedule. Though, execution petition does not state any details as to the manner of violation petitioners have filed supplementary affidavit on 10.02.2005 and going by the decision referred supra it is sufficient that the details regarding violation are brought up in the form of an affidavit. It appears that executing court has not referred to the additional affidavit dated 10.02.2005.

In the light of statement of PW4 (Advocate Commissioner) that he was not able to identify whether the impugned construction is made in plaint A schedule or puramboke land it is necessary for petitioners to identify with the assistance of a Surveyor whether the impugned constructions are made (after decree) in any portion of plaint A schedule. If respondent No. 7 has a contention that decree is not binding him that also is a matter which executing court has to consider. If respondents have a contention that the impugned additional constructions were not made by them that also, executing court has to consider.

Resultantly this Writ Petition is allowed in part in the following lines:

i. Ext.P4, order to the extent it concerned prayer in the execution petition to proceed against respondents for alleged violation of decree for prohibitory injunction is set aside.

ii. E.P. No. 31 of 2003 is remitted to the executing court for fresh decision on the allegation regarding violation of decree for prohibitory injunction. It will be open to the respondents to raise all their contentions against the relief of detention sought for.