Allowed

P.B. Reghunathan Nair v. Devakiamma

Kerala HC4 Jul 2016OP(C)/1831/2015

Case brief

AI extract

What is this about?

The High Court of Kerala, Ernakulam, reviewed the High Court, Changanacherry Judgment. It clarified the scope of specific injunctions in the original decree, limiting the execution court's directives to the removal of dumped soil rather than broader preservative measures to maintain the pathway.

What did the court decide?

The direction to do necessary things such as to avoid landsliding to preserve the right of way was deleted, while the directive to remove dumped soil remained under the supervision of the Advocate Com

P.B. Reghunathan Nair Vs Devakiamma — 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.HARILAL

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MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938

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OP(C).No. 1831 of 2015 (O)

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E.P. NO. 65/2014 IN OS NO. 198/2003 OF MUNSIFF'S COURT, CHANGANACHERRY

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PETITIONER :

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P.B. REGHUNATHAN NAIR

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S/O. BHASKARAN NAIR, AYKARA, ITHITHANAM KARA, KURICHY VILLAGE, KOTTAYAM DISTRICT, PIN- 686 535.

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BY ADVS.SRI.M.P.MADHAVANKUTTY

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SRI.S.RANJIT (KOTTAYAM) SRI.GOKUL DAS V.V.H.

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RESPONDENT :

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DEVAKIAMMA

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RESIDING AT KUMARAMANGALATHU HOUSE, FROM PALLIPURATHU HOUSE, ITHITHANAM KARA, KURICHY VILLAGE, KOTTAYAM DISTRICT PIN - 686 535.

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BY ADV. SRI.RAJEEV V. KURUP

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2016, ALONG WITH OP(C) NO. 1574/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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...2/-

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OP(C).No. 1831 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT-P1TRUE COPY OF THE DECREE IN O.S. NO. 198/2003 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY.

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EXHIBIT-P2TRUE COPY OF THE OBJECTION 30/01/2015 E.P. 65/2014 IN O.S.NO.198/2003 BEFORE THE MUNSIFF COURT, CHANGANACHERRY.

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EXHIBIT-P3TRUE COPY OF THE ORDER DATED 11/06/2015 IN E.P.NO. 65/2014 IN O.S.NO. 198/2003 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY.

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EXHIBIT-P4TRUE COPY OF THE REVIEW PETITION DATED 30/06/2015 FILED BY THE PETITIONER.

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EXHIBIT-P5TRUE COPY OF THE OBJECTION DATED 03/07/2015 FILED BY THE RESPONDENT.

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EXHIBIT-P6TRUE COPY OF THE APPLICATION DATED 03/07/2015 FILED BY THE PETITIONER.

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EXHIBIT-P7TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT.

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RESPONDENT(S)' EXHIBITS : NIL

//TRUE COPY//

P.A. TO JUDGE

K. HARILAL, J.

= = = = = = = = = = = = = = = = = = = = = O.P.(C) Nos. 1831 of 2015 & 1574 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - Dated this the 4th day of July, 2016

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J U D G M E N T

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Since the parties are common and matter in

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issue involved in both the Original Petitions is same, these Original Petitions are heard together and disposed of accordingly.

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Both the Original Petitions are filed by the Judgment Debtor, in Execution Petition No.65 of 2014 in Original Suit No.198 of 2003, on the files of the Munsiff's Court, Changanacherry, challenging Exts.P3 and P8 orders passed by the Execution Court, in execution of the decree passed in the above Original Suit.

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The petitioner contended that the decree is not executable and plaint schedule item No.4 pathway cannot be identified, without the assistance of the Surveyor. It is also contended that Ext.P8 goes

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O.P.(C) Nos. 1831 of 2015 & 1574 of 2016

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-: 2 :-

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beyond the decree. In the light of the contentions

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raised in the Execution Petition, the respondent

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filed Execution Application No.28 of 2015, to

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appoint an Advocate Commissioner, to execute the decree under her supervision in tune with the decree. After considering the rival pleas, the Execution Court passed Ext.P3 order, directing the Amin to reinstate the decree schedule item No.4 pathway with the aid and supervision of the Advocate Commissioner appointed in Execution Application No.28 of 2015, in tune with the decree. The Advocate Commissioner was also appointed accordingly.

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Aggrieved by the said order, the petitioner again filed Ext.P4 application, to review Ext.P3 order passed earlier. After considering the grounds raised in the memorandum of Review Petition, the Execution Court rejected the grounds raised in the memorandum and passed Ext.P8 order, directing the

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O.P.(C) Nos. 1831 of 2015 & 1574 of 2016

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-: 3 :-

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Amin and Commissioner to reinstate item No.4

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pathway, in tune with the decree and to do necessary things such as to avoid landsliding or to remove other obstructions in the said way to preserve their right of way, but not in detrimental to the ownership of the Judgment Debtor over the said way. The legality and correctness of the reasons, whereby Exts.P3 and P8 orders are passed, are under

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challenge in the above Original Petitions.

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Heard the learned counsel for the

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petitioner and learned counsel appearing for the respondent.

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The sum and substance of the arguments advanced by the learned counsel for the petitioner

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is that the Execution Court went beyond the decree and directed the Amin to reinstate item No.4 pathway

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and also to do necessary things, such as to avoid landsliding or other obstructions in the said way to

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O.P.(C) Nos. 1831 of 2015 & 1574 of 2016

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-: 4 :-

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preserve their right of way. According to the learned counsel for the petitioner, the matters, which are directed to be executed under Ext.P8 goes beyond the decree, as there is no direction in the decree.

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Per contra , the learned counsel for the respondent advanced arguments, contending that such a direction to do the needful to preserve their right of way is inevitable, in view of the particular topography of the land and the pathway. In view of the submissions made at the Bar, the point to be considered is, whether the matters, which are directed to be executed in Ext.P8 order are in terms with the decree.

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It is apposite and profitable to extract

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the terms of decree, which reads as follows:

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“That, (1) the defendant is directed by a mandatory injunction to remove the soil dumped in the portion of plaint item No.4 way which passes

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O.P.(C) Nos. 1831 of 2015 & 1574 of 2016

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-: 5 :-

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through plaint item No.3 property within 30 days from today

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(2) on the failure of the defendant, the plaintiff is at liberty to approach this court to remove the same through the court and to realise the expenses thereof from the defendant.

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(3) the defendant and his men are restrained by a permanent prohibitory injunction from reducing the width of the portion of plaint item No.4 which passes through plaint item No.2, from causing any obstruction to the use of plaint item No.4 by the plaintiff and his family members and from destroying the boundary signs of plaint item No.4. (4) There is no order as to costs”

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Going by the decree, as contended by the

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learned counsel for the petitioner, there is no direction to reinstate the way; but the direction is

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to remove soil dumped in the portion of the plaint item No.4 way, which passes through the plaint item No.3 property and on the failure, the respondent is at liberty to approach the court to remove the same through the court and to realise the expenses thereof from the petitioner. The petitioner failed

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O.P.(C) Nos. 1831 of 2015 & 1574 of 2016

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-: 6 :-

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to remove the soil from item No.4 pathway.

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Therefore, the respondent has the right to get the soil removed through the process of the court and a

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direction can be issued for the same. Even if the Execution Court has intended the removal of the soil only, by using the expression 'to reinstate item No.4' caused a little confusion, which requires clarification. The court below ought to have directed the Amin to execute the decree, in terms of the decree only.

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Therefore, in modification of the said

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direction, to reinstate item No.4 pathway, the Amin is directed to remove soil dumped in the portion of the plaint item No.4 way, which passes through the plaint item No.3 property, having a length of 140 metres and 06 feet width, under the supervision of the Advocate Commissioner.

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Coming to the next objection raised by the

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O.P.(C) Nos. 1831 of 2015 & 1574 of 2016

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-: 7 :-

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petitioner, as submitted by the learned counsel for

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the petitioner , there is no direction in the decree to do the needful to preserve the right of way other

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than the prohibitory injunction. This Court is of the opinion that when there is a prohibitory injunction, restraining the petitioner from causing any obstruction to the plaint item No.4 way, there is no need to make anything in advance for the preservation of the said right of way, in the absence of specific direction in the decree.

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Therefore, the direction to do necessary things, such as to avoid landsliding or other obstructions in the said pathway to preserve the right of way will stand deleted. But, it is to be remembered that there is prohibitory injunction, restraining the petitioner from reducing the width of portion of plaint item No.4 pathway. Therefore, it is obligatory on the part of the petitioner also

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O.P.(C) Nos. 1831 of 2015 & 1574 of 2016

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-: 8 :-

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to see the pathway is having 06 feet width and 140

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metres length, without being obstructed by any act of the petitioner.

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These Original Petitions (Civil) are disposed

of accordingly.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

P.B. Reghunathan Nair v. Devakiamma

Case brief

What is this about?

What did the court decide?

P.B. Reghunathan Nair v. Devakiamma

Case brief

What is this about?

What did the court decide?

What the court decided

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