Petition under Article 227 challenging an order rejecting amendment to an execution petition. Court dismissed petition, holding injunction is personal to the decree-holder and cannot be enforced against non-parties like the respondent's brother.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K. RAMAKRISHNAN
THURSDAY, THE 28TH DAY OF JULY 2016/6TH SRAVANA, 1938
OP(C).No. 1812 of 2016 (O)
PETITIONERS:
1. RUKMA BAI AGED 74 YEARS, W/O.LATE B.VITTAL SHENOY, RESIDING AT PALLAKANA, ENMAKAJA VILLAGE, MANJESHWAR TALUK, PERIA P.O.
2. MADHAVA SHENOY AGED 45 YEARS, S/O.LATE B.VITTAL SHENOY, RESIDING AT PALLAKANA, ENMAKAJA VILLAGE, MANJESHWAR TALUK, PERIA P.O.
3. SREENIVASA SHENOY AGED 50 YEARS, S/O.LATE B.VITTAL SHENOY, RESIDING AT PALLAKANA, ENMAKAJA VILLAGE, MANJESHWAR TALUK, PERIA P.O.
4. AHAMMED SHERIEF AGED 45 YEARS, S/O.ABDULKHADAR, RESIDING AT PERLA OF ENMAKAJA VILLAGE, MANJESHWAR TALUK, PERLA P.O.
BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI
RESPONDENT:
ANANTHESHWARA PAI AGED 50 YEARS, S/O.LATE B.VARADARAYA PAI, RESIDING AT PERLA OF ENMAKAJA VILLAGE, MANJESHWAR TALUK, PERLA P.O, 671 552.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 1812 of 2016 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
RESPONDENT(S)' EXHIBITS:- NIL
/TRUE COPY/
P.A. TO JUDGE
DCS
K. RAMAKRISHNAN, J.
---------------------------------------
O.P.(C). No. 1812 OF 2016
Dated this the 28th day of July, 2016
JUDGMENT
The decree holder in E.P. No. 55/2008 in O.S. No. 397/1985 on the file of the Principal Munsiff Court, Kasaragod has filed this petition challenging Ext. P8 order rejecting the application for amendment under Article 227 of the Constitution of India. It is alleged in the petition that the suit was filed by the plaintiff against the respondent for perpetual prohibitory injunction and the suit was decreed against him. Since the petitioners were away, the respondent committed violation of the injunction decree and trespassed into the property and committed some waste. So the petitioners filed E.P. No. 55/2008 in O.S. No. 397/1985 for enforcement of the injunction decree. The respondent entered appearance and counter affidavit was filed denying the allegations. Thereafter, evidence was taken and during evidence of PW1, he had stated that the trespass was committed by
O.P.(C). No. 1812 OF 2016
2
the respondent along with his brother and so an amendment application was filed seeking amendment of the execution petition stating that the trespass was committed by the respondent along with his brother instead of respondent trespassed into the property. After hearing, that petition was dismissed by the Court below
and against that order, this petition has been filed.
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the petitioners against the respondent alone and the permanent prohibitory injunction was obtained only against him. So the injunction is only against the person and if that person commits any violation, he can be proceeded against. So there is no necessity to mention anything about the brother of the respondent and seek amendment to that effect in the execution petition as they are not party to the suit. If the court feels on the basis of evidence that it is at the instigation of the respondent and with the help of the brother, if the mischief was committed, the person to be proceeded against is the defendant alone and not the other persons. Probably, criminal prosecution may be possible against those persons who have trespassed into the property and committed mischief. As regards the enforcement of injunction is concerned, since it is purely a personal decree, it can only be enforced against the person against whom that decree has been obtained.
O.P.(C). No. 1812 OF 2016
With the above observation and direction, the original petition is dismissed.
K. RAMAKRISHNAN, JUDGE
DCS
2 issues framed by the court
Whether the High Court should interfere under Article 227 to allow amendment to an execution petition to include the brother of the respondent who was not a party to the suit.
Whether violation of an injunction decree can be enforced against persons who are not parties to the original decree.
Rukma Bai
Madhava Sheno
Sreenivasa Sheno
Ahammed Sherief
Anantheswara Pai
K. Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
