Partly allowed

Abdul Azeez v. Satheesan Nair

Kerala HC9 Feb 2016OP(C)/1052/2015

Case brief

AI extract

What is this about?

This O.P. challenges an order staying execution of an ex parte decree regarding a perpetual injunction. The court held that the first respondent, having no title to the property, cannot be effectively injuncted regarding the main relief, but may be liable for costs. Execution against the property owner remains valid.

What did the court decide?

The order of the executing court staying execution of the decree for mandatory injunction against the first respondent is set aside, allowing execution against the property owner.

Abdul Azeez Vs Satheesan Nair — Execution and Attachment | Kerala HC (2016)

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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 K.ABRAHAM MATHEW

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TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937

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OP(C).No. 1052 of 2015 (O)

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OS.NO. 618/2009 OF ADDL.MUNSIFF COURT, NEDUMANGAD

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PETITIONER :

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ABDUL AZEEZ, SON OF MYTHEEN KUNJU,AGED 46 YEARS, MAJEED MANZIL, BLOCK NO.75, KALLARA P.O, VITHURA VILLAGE, NEDUMANGAD.

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BY ADV. SRI.ROY MATHEW

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RESPONDENT(S):

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1. SATHEESAN NAIR,

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SON OF MADHAVAN PILLAI,

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RESIDING AT SREE RAMAKRISHNA CHARITABLE SOCIETY,

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SASTHAMANGALAM, THIRUVANANTHAPURAM-695 001

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2. PADMAVATHY, WIFE OF SATHEESAN NAIR,

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KALLUVILAYATHIL VEEDU, MULLACHIRA,

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ANAPPARA P.O, VITHURA VILLAGE, NEDUMANGAD.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD

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ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 1052 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1TRUE COPY OF THE PLAINT IN OS NO.618/2009 ON THE FILE OF THE ADDL.MUNSIFF COURT, NEDUMANGAD

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P2TRUE COPY OF THE COMMISSION REPORT FILED BY THE COMMISSIONER ADVOCATE BEFORE THE MUNSIFF COURT, NEDUMANGAD

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P2(A)- TRUE COPY OF THE PLAN

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P3TRUE COPY OF THE ORDER IN IA 4968/12 IN OS 618/2009 DATED 27.3.2012 OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD

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P4TRUE COPSY OF THE JUDGMENT IN OS NO.618/2009 DATED 27.3.12 OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD

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P5TRUE COPY OF THE DECREE IN OS 618/2009 DATED 27.3.12 OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD

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P6TRUE COPY E.P.108/12 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, NEDUMANGAD

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P7TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF COURT, NEDUMANGAD

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P8TRUE COPY OF THE SALE DEED NO.1929/95 DATED 7.8.1995

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P9TRUE COPY OF THE ORDER IN IA 2732/13 IN OS 618/2009 DATED 15.11.2014 OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD

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P10TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT BEFORE THE MUNSIFF COURT, NEDUMANGAD

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P11TRUE COPY OF THE DEPOSITION

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P12TRUE COPY OF THE ORDER DATED 26.2.2015 DATED IN EA NO.51/2015 IN EP 108/2012 IN OA 618/2009 OF THE ADDITIONAL MUNSIFF COURT, NEDUMANGAD

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K.ABRAHAM MATHEW, J.

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O.P.(C) No.1052 of 2015

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Dated this the 9^th day of February, 2016

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JUDGMENT

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Petitioner was the plaintiff in O.S.No.618 of 2009 of Addl. Munsiff Court, Nedumangad. It was for a perpetual injunction in respect of B schedule pathway. On the allegation that after the issuance of order of temporary injunction respondents/defendants, who are husband and wife, violated it the petitioner filed an application Order 39 Rule 2A C.P.C for their prosecution. He also amended the suit and incorporated the relief of mandatory injunction. The suit was decreed ex parte. The petitioner filed Ext P6 execution petition. The 1^st respondent, thereafter, filed Ext P7 application to set aside the ex parte decree. This was allowed by the trial court. On the application filed by the 1^st respondent the executing court stayed execution of the decree. This is challenged in this O.P.

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Heard the learned counsel for the petitioner.

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The property involved in the suit over which the right of way

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is claimed by the petitioner belongs to the 2^nd respondent alone. The 1^st

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respondent has no title, interest or right in it. So far as he is concerned the only question that arises for consideration in the suit is whether he is

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O.P.(C) No.1052 of 2015 2

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liable to pay costs of the suit or whether a decree of injunction can be passed against him. Since the property does not belong to him, he has no right to object to the decree of mandatory injunction passed in favour of the petitioner. The 2^nd respondent who is the owner of the property has not challenged the decree. As the 2^nd respondent has not complied with the mandatory injunction the petitioner is entitled to get the decree executed at her expense. The executing court was wrong in staying the execution of the decree in its entirety. The order is liable to be set aside to this extent.

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In the result, this O.P is allowed in part. The order of the executing court staying execution of the decree for mandatory injunction is set aside. The order of stay will operate only so far as the 1^st respondent's liability to be injuncted on to pay costs is concerned.

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K.ABRAHAM MATHEW JUDGE

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Abdul Azeez v. Satheesan Nair

Case brief

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Abdul Azeez v. Satheesan Nair

Case brief

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