Partly allowed

Sadanandan v. George

Kerala HC1 Apr 2013OP(C)/553/2013

Case brief

AI extract

What is this about?

High Court allowed Original Petition quashing the executing court''s order dismissing the petitioner''s execution application. Court held the lower court erred in treating the matter only as a decree violation, allowing remission for decision on the prayer to erect a fence for property protection.

What did the court decide?

Impugned order dated 17.12.2012 set aside; Execution petition No.53/2010 remitted to executing court for fresh decision on fence construction prayers; Hearing fixed for 22.05.2013.

Sadanandan Vs George — Execution and Attachment | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 1ST DAY OF APRIL 2013/11TH CHAITHRA 1935

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OP(C).No. 553 of 2013 (O)

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{IN E.P.NO.53/2010 IN O.S.NO.399/2002 OF THE MUNSIFF'SS COURT, CHENGANNUR}

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PETITIONER(S)/DECREE HOLDER:

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SADANANDAN, AGED 66 YEARS, S/O NARAYANAN, CHARIVUKALAYIL (VALIL HOUSE) KOZHUVALLOOR MURI, MULAKUZHA VILLAGE, CHENGANNUR TALUK.

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BY ADV. SRI.N.ASHOK KUMAR

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RESPONDENT(S)/JUDGMENT DEBTORS:

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1. GEORGE, VALLIYATHARAYIL, KOZHUVALLOOR MURI, MULAKKUZHA VILLAGE, CHENGANNUR TALUK, PIN - 689 521.

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2. SOBHANA, VALLIYATHARAYIL, KOZHUVALLOOR MURI, MULAKKUZHA VILLAGE, CHENGANNUR, PIN - 689 521.

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3. PRASANNA KUMAR, VALLIYATHARAYIL, KOZHUVALLOOR MURI, MULAKKUZHA VILLAGE, CHENGANNUR TALUK, PIN - 689 521.

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4. ROHINI, VALLIYATHARAYIL, KOZHUVALLOOR MURI, MULAKKUZHA VILLAGE CHENGANNUR TALUK, PIN - 689 521.

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R2 & R4 BY ADVS. SRI.ABRAHAM SAMSON & SMT.LOVELY SAMSON

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 553 of 2013 (O) :: ::

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXHIBIT P1. TRUE COPY OF DECREE IN O.S.NO.399/2002 OF MUNSIFF'S COURT, CHENGANNUR DATED 31-102006.

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EXHIBIT P2. TRUE COPY OF EXECUTION PETITION E.P.NO.53/2010 IN O.S.NO.399/2002 OF MUNSIFF'S COURT, CHENGANNUR DATED 28-05-2010.

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EXHIBIT P3. TRUE COPY OF EXECUTION APPLICATION NO.116/2010 IN E.P.NO.53/2010 IN O.S.NO.399/2002 OF MUNSIFF'S COURT, CHENGANNUR DATED 6-12-2010. EXHIBIT P4. TRUE COPY OF ORDER IN E.P.NO.53/2010 IN O.S.NO.399/2002 DATED 17.12.2012 OF MUNSIFF'S COURT, CHENGANNUR.

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RESPONDENTS' EXHIBITS: NIL

//true copy//

P.A. To Judge

sk/-

THOMAS P. JOSEPH, JUDGE.

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- - - - - - - - - - - - - - - - - O.P.(C). No.553 of 2013

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- - - - - - - - - - - - - - - -

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Dated this the 1^st day of April, 2013.

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JUDGMENT

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Petitioner obtained Ext.P1, decree for prohibitory injunction against the respondents trespassing into the suit property and for protection of his peaceful enjoyment of the said property etc. He filed Ext.P2, execution petition - E.P. No. 53 of 2010. He also filed Ext.P3, application for appointing an advocate commissioner to fence the suit property. Exts.P2 and P3 applications were dismissed by the impugned order.

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Learned counsel submits that purport of E.P. No. 53 of 2010 was not to punish the respondents for any violation of the decree, but to protect the suit property for peaceful possession and enjoyment of petitioner over that property by constructing a fence. According to the learned counsel, it is within the power of the exeucuting court to permit petitioner to construct fence around the suit property for its protection and to ensure its peaceful possession and enjoyment by the petitioner. It is without noticing the same that the executing court has dismissed Exts.P2, and P3 applications.

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Learned counsel for the respondents contended that

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O.P.(C) No. 553/2013 : 2 :

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attempt of petitioner is to put up a boundary wall under the guise of enforcing a decree for prohibitory injunction. Learned counsel has also invited my attention to the evidence of PW1 as given in the exeucuting court.

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It is seen from Ext.P4, order that executing court was under the impression that petitioner is proceeding against respondents for violation of the decree. It is seen from Ext.P2 that petitioner had requested the executing court to construct fence around the suit property as respondents attempted to trespass. It is also seen that the executing court has not gone into the question whether that prayer could be allowed or not having regard to the nature of the decree. Instead, as aforesaid, main consideration was whether there was any violation of the decree by the respondents and whether they are liable to be proceeded against under Rule 32 Order 21 of the Code of Civil Procedure. In that view of the matter, Ext.P4 order is liable to be set aside.

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Resultantly, this Original Petition is allowed as under:

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1.Ext.P4, order dated 17.12.2012 in E.P. No. 53 of

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2010 in O.S. No. 399 of 2002 of Munsiff's Court, Chengannur is set aside.

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O.P.(C) No. 553/2013

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: 3 :

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2.E.P. No. 53 of 2010 is remitted to the exeucuting court for a decision as to whether prayer of petitioner for construction of fence around the suit property in the light of apprehention he has made could be allowed or not.

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3.It is made clear that if found necessary, executing court has to identify the property based on the report and plan, if any produced on the trial side.

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4.Parties shall appear in the executing court on 22.05.2013.

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sd/- THOMAS P. JOSEPH, JUDGE.

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O.P.(C) No. 553/2013 : 4 :

Sadanandan v. George

Case brief

What is this about?

What did the court decide?

Sadanandan v. George

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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