Saraswathiamma Vs Manuel

1 SARASWATHIAMMA, AGED 69 YEARS, W/O LATE GOPINATHAN, DHARMAVILASOM, KONATTUSSERY, KADAKKARAPALLI P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688529

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2 LALITHADEVI, AGED 44 YEARS, D/O LATE GOPINATHAN, DHARMAVILASOM, KONATTUSSERY, KADAKKARAPALLI P.O., CHERTHALA, ALAPPUZHA DISTRICT, PIN – 688529

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3 INDIRADEVI, AGED 42 YEARS, D/O LATTE GOPINATHAN, DHARMAVILASOM, KONATTUSSERY, KADAKKARAPALLI P.O., CHERTHALA, ALAPPUZHA DISTRICT., PIN - 688529

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BY ADV K.S.HARIHARAPUTHRAN

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RESPONDENTS/DECREE HOLDER 3RD JUDGMENT DEBTOR:

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1 MANUEL, S/O JOSEPH, THAIVELIKKAKATHU, NAROTH ROAD, THAMMANAM, PALARIVATTORM, EDAPPALLY SOUTH VILLAGE, ERNAKULAM, PIN - 682025

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2 JAYATHILAKAN, S/O LATE GOPINATHAN, AGED 46 YEARS, DHARMAVILASOM, KONATTUSSERY, KADAKKARAPALLI P.O., CHERTHALA, ALAPPUZHA, DISTRICT, PIN - 688529

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BY ADVS. C.G.BINDU AJITHA C.G.(K/000536/1994) K.J.SARANYA RAJ(K/000465/2018)

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.03.2025,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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'C.R'

K.BABU, J.

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Dated this the 24^th day of March, 2025

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JUDGMENT

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The judgment debtors in an Execution Petition challenge the

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order of the Execution Court directing restoration of the property to its original position in this proceedings. Petitioner Nos.1 to 3 are additional judgment debtor Nos. 2, 4 and 5. Respondent No.1 is the decree-holder. Additional judgment debtor No.3 is respondent No.2.

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The decree holder/plaintiff instituted O.S No.512/1990

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before the Munsiff's Court, seeking a permanent prohibitory injunction and mandatory injunction against the defendants. The Trial Court dismissed the suit. The decree holder/plaintiff challenged the decree of the Trial Court filing A.S No.91/2003 before

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the Subordinate Judge's Court, Cherthala. The First Appellate Court

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reversed the judgment and decree passed by the Trial Court and decreed the suit granting a permanent prohibitory injunction and mandatory injunction in favour of the decree-holder/plaintiff. The defendants challenged the decree of the First Appellate Court in RSA No.839/2013, which ended in dismissal. The decree became final. The decree-holder executed the decree granting a mandatory injunction in E.P No.68/2012.

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2.1. The decree-holder on 21.03.2017 filed E.P No.38/2017 alleging that on 25.02.2017, defendant No.2 trespassed upon the plaint schedule property and erected a shed, and dumped waste in the property. It is also alleged that the fencing on the boundary was also destroyed. The original judgment debtor (defendant No.2) filed a petition under Section 47 of the CPC challenging the executability of the decree. He contended that the decree is not executable as it is time-barred. He further contends that the relief of fixation of boundary prayed for in the Execution Petition is not maintainable.

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2.2. On 07.03.2021, the original judgment debtor/defendant No.2 died. On the application of the decree-holder, additional judgment debtor Nos.2 to 5 were impleaded as per order in E.A No.69/2021 dated 23.05.2022. They entered appearance. Additional judgment debtor No.5 filed a separate objection to the decree. She also contended that the relief of mandatory injunction is barred by limitation, and there is no decree for fixation of boundary and therefore, the decree is not executable.

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2.3. The Execution Court on 03.08.2022 allowed the Execution

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Petition repelling the contentions raised by the judgment debtors and appointed an Advocate Commissioner and Surveyor to supervise the act of restoration of the plaint schedule property to its original position by the Amin.

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The learned counsel for the petitioners made the following submissions:

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(i) The relief granting the decree-holder to construct

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the boundary on ABC and AG lines with the

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assistance of the Amin and the Commissioner

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amounts to executing a decree for fixation of boundary, which the First Appellate Court had not granted.

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(ii) The order in Execution Application No.298/2019 is an order against a dead person; therefore, it has no validity in the eye of law.

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(iii) The objections filed by the additional judgment debtor No.5 were not considered by the Execution Court.

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The learned counsel for respondent No.1 made the following submissions:

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(a) The Execution Court is empowered to pass orders for enforcing a decree in a manner that would give effect to it.

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(b) The Execution Court has considered the objections raised by the additional judgment

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debtor No.5. The relief granted in the

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Execution Petition is not a relief consequent

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to the dismissal of E.A No.298/2019.

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The decree granted in favour of the decree-holder/plaintiff

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is as follows:

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“The second defendant, his men and agents are restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property or to do any acts detrimental to the interest of the plaintiff. The second defendant is directed to dismantle and remove the latrine and other structures put up by him in the plaint schedule property within one month from the date of this judgment at his expense failing which the plaintiff is permitted to get those things removed with the assistance of the court and to realise the costs so incurred from the second defendant and his assets.”

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In the Execution Petition, the decree-holder contended that

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on 25.02.2017, defendant No.2 trespassed upon the plaint property

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and constructed a hut, encroaching upon the property and

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destroying the boundaries. He also dumped waste on the property.

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The decree-holder under Order XXI Rule 32 of the CPC

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prayed for the following reliefs:

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(a) The construction done encroaching upon the

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plaint property and the waste dumped therein

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are to be removed.

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(b) The boundary lines identified as ABC and AG in the plan prepared in E.P No.68/2012 are to be restored to their original position by permitting the decree-holder to construct a permanent

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boundary on the said lines.

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The learned counsel for the petitioners submitted that the relief praying for erecting a permanent boundary on the lines specified in the plan submitted amounts to the execution of a decree for fixation of the boundary, which relief was not granted by the decree.

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The learned counsel for the decree-holder countered and submitted that the relief prayed for is restoration of the property to its original position as far as practicable and incur the costs of the same from the judgment debtor, which is within the mandate of Order XXI Rule 32 CPC. It is admitted that in E.P No.68/2012, the

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boundaries were determined, and a fence was installed. In the

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previous Execution Petition, a plan drawn to the scale was prepared, and the alleged encroachment that occurred on the lines

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was noted as ABC and AG.

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It is profitable to extract Order XXI Rule 32 (5) of the CPC:

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“ 32. Decree for specific performance for restitution of conjugal rights, or for an injunction.

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xxx xxx xxx

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(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decreeholder or some other person appointed by the court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and may be recovered as if they were included in the decree.”

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The act required to be done contained in Order XXI Rule 32

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(5) of the CPC was interpreted in a series of judicial

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pronouncements to extend it to prohibitory injunctions. By Act 22

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of 2002, with effect from 01.07.2002 an explanation was added to

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cover specifically prohibitory as well as mandatory injunctions

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within the fold of the act that required to be done.

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12. While considering the powers of the Execution Court

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contained in Section 51 of the CPC in State of Haryana v. State of

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Punjab [(2004) 12 SCC 673], the Supreme Court held thus:

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“ 96. The residuary power under Section 51(e) allows a court to pass orders for enforcing a decree in a manner which would give effect to it. The period specified in the decree for completion of the canal by Punjab is long since over. The Union of India has said that it had worked out a contingent action plan during this period. The contingency in the form of expiry of the one-year period in January 2003 has occurred. We have not been told whether the contingency plan has been put into operation. Although it appears that the Cabinet Committee on Project Appraisals had approved the proposal for completion of the SYL Canal by BRO and at a meeting convened as early as on 20-2-1991, the then Prime Minister directed that BRO take over the work for completion of the SYL Canal in the minimum time possible, BRO is not now available for the purpose. After the decree the Central Water Commission officials have inspected the canal on 9-10-2002. The report has assessed a minimum period of about two years for removing silt deposits, clearing of trees and bushes, completing the damaged and balance works and making the canal functional and has estimated an amount of about Rs 250 crores for this purpose excluding the liabilities of Punjab. In the circumstances we direct the Union of India to carry out its proposed action plan within the following time frame:

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(1) The Union of India is to mobilise a Central agency to take control of the canal works from Punjab within a month from today.

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(2) Punjab must hand over the works to the Central agency within 2 (two) weeks thereafter.

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(3) An Empowered Committee should be set up to coordinate and facilitate the early implementation of the decree within 4 (four) weeks from today. Representatives of the States of Haryana and Punjab should be included in such Committee.

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(4) The construction of the remaining portion of the canal including the survey, preparation of detailed estimates and other preparatory works such as repair, desilting, clearance of vegetation, etc. are to be executed and completed by the Central agency within such time as the HighPowered Committee will determine.

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(5) The Central and the Punjab Governments should provide adequate security for the staff of the Central agency.”

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13. Order XXI Rule 32 CPC applies to prohibitory as well as

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mandatory injunctions. In other words, it applies to cases where

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the party is directed to do some act and also to cases where he is

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abstained from doing an act. Still to put it differently, a person

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disobeys an order of injunction not only when he fails to perform an

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act which he is directed to do but also when he does an act which

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he is prohibited from doing. Execution of an injunction decree is to

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be made in pursuance of Order XXI Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible {Vide: Kanwar Singh Saini v. High

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Court of Delhi [(2012) 4 SCC 307] }.

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In Gopinathan Pillai V. v. Rajappan and Others [2011 (2)

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KHC 508] , this Court, while dealing with the powers of the

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Execution Court under Order XXI Rule 32 (5) CPC, observed thus:

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“ 13 . A decree for prohibitory injunction could be of different types. The nature of injunction may be different. …......................... Even a prohibitory injunction can be specifically enforced and the judgment - debtors could be compelled to obey the decree.

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xxx xxx xxx

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15 . An argument is possible that in cases where the decree cannot be enforced, whether the nature of the decree is mandatory or prohibitory, the act required to be done cannot be specifically enforced. In other words, it can be argued that an act which cannot be undone cannot be enforced or executed by recourse to R.32 of O.21. I am not inclined to take such a view as it would defeat the very purpose of R.32. I am of the view that even such cases could be effectively dealt with by recourse to subrule (3) and (5) of R.32 as compensation could be awarded under sub-rule (3) though the decree does not make such a provision. The costs can be ascertained and recovered as provided in sub-rule (5) though the decree is silent about the same. Such wide powers are given to the executing Court for the purpose of enforcing and executing the decree and to meet any contingency where

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the decree is violated. If we were to hold that a judgment - debtor who has cut and removed trees in violation of the decree cannot be proceeded with under R.32 (except for detention in civil prison) but he can be proceeded with only in cases where the act required to be done could be done positively, we would be conceding that the executing Court is powerless to deal with a case where something is done by the judgment - debtor which cannot be corrected and status quo ante restored. I am of the view that such an interpretation is not plausible going by the scheme of the various provisions of the Code of Civil Procedure including S.51, O.21 R.32 and S.47.”

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In Krishnan Namboodiri and Others v. A. P. Unnikrishnan

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Namboodiri (2005 KHC 681), this Court held that it is only just and proper to invoke the inherent power of the Court under Section 151 CPC when a specific provision is lacking to meet a particular contingency to enforce a decree or order of the Court.

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While dealing with a question of whether in the execution of a decree for declaration of title, followed by a prohibitory injunction, a commission can be issued to construct a compound wall, which relief was not, in terms, granted by the decree, this

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Court in Paulose V. U. v. V. P. Molly (2024 KHC OnLine 115) after surveying all the precedents on the subject observed thus:

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“ 24 . On the strength of the legal position as regards O.21, R.32(5) as noted above, as also, on the basis of the dictum laid down in the various judicial pronouncements, this Court will straight away arrive at the conclusion that the learned Munsiff clearly erred in not invoking the powers under Sub Rule (5) of O.21, R.32 and negating the decree holder's request to appoint a Commissioner, aided with a Surveyor, to supervise the construction of the compound wall. In arriving at such conclusion, this Court should also address the sweep, as also, the scope of a prohibitory injunction restraining the defendants from doing anything interfering with the peaceful possession and enjoyment of the plaint schedule property by the plaintiff. Let me employ the precise words in the decree in question, which is extracted here below: "Defendants and men under them are restrained by decree of permanent prohibitory injunction from trespassing upon the plaint schedule property ......... ........ ....... and from doing any act interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property." (underlined by me for emphasis)”

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17. In Suhara Beevi v. Sainudheen (2024 KHC OnLine 481), this

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Court observed thus:

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“ 5. R.32 of O.21 of CPC provides modes of enforcement of decree for specific performance of contract, decree for injunction, and decree for restitution of conjugal rights. The rule provides for attachment of property of the judgment debtor and payment of sale proceeds to the decree holder as also detention of judgment debtor (except in case of decree for restitution of conjugal rights), or by both. Apart from the arrest of the judgment debtor or attachment of his property, Sub-rule (5) of R.32

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empowers the executing court to take appropriate action for enforcing the decree at the cost of the judgment debtor who willfully disobeys such decree. It says that, where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes stated in Sub-rules (1) to (4) of R.32, direct that the act required to be done may be done so far as practicable by the decree - holder or some other person appointed by the Court, at the cost of the judgment - debtor. The Explanation clarifies that the expression 'the act required to be done' covers prohibitory as well as mandatory injunctions. A judgment debtor disobeys a decree of injunction not only when he fails to perform an act that he is directed to do but also when he does an act that he is prohibited from doing. Thus, where a decree for permanent prohibitory injunction was passed restraining the judgment debtor from trespassing into the decree schedule property, and the judgment debtor subsequently trespassed into the property and remained in possession therein, the decree could be enforced by evicting the judgment debtor from the property. Sub-rule (5) of R.32 of O.21 of CPC gives such a power to the execution court. The petitioner has claimed in the objection statement filed to the Execution Petition that she is still in occupation of the decree schedule building. The claim itself is a proof of wilful disobedience of the decree. Hence, I find no illegality or impropriety in the impugned order deputing Amin for delivery of the property by evicting the petitioner.”

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18. In the present case, as I stated above, a plan was

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prepared in the Execution Petition filed seeking execution of the

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decree for mandatory injunction, wherein the boundaries destroyed were shown as ABC and AG lines. The decree-holder placed sufficient materials to establish that the original judgment debtor encroached upon the property, violating the order of prohibitory injunction and thereby destroying the boundaries. The Execution Court granted the relief of permitting the decree-holder to fix a permanent boundary on the destroyed lines with the assistance of the Amin, the Commissioner and the Surveyor. This Court finds no reason to interfere with that order. The contention of the learned counsel for the petitioners that the powers of the Court granting such relief are beyond the scope of Order XXI Rule 32 (5) CPC cannot be sustained.

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Yet another objection raised by the learned counsel for the petitioners is that the order in E.A No.298/2019 is an order against a dead person as the original judgment debtor (defendant No.2) died during the proceedings in the E.A. During the course of the proceedings in the Execution Petition the decree holder had taken

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steps to implead the Legal Representatives of the original judgment debtor and they were impleaded as additional judgment debtor Nos.2 to 5 as per order dated 23.05.2022. Additional judgment debtor No.4 filed objection to the Execution Petition. The judgment debtors, in fact, abandoned E.A No.298/2019 as they did not take any steps to get them impleaded as parties in the capacity of the legal representatives of the judgment debtor. Therefore, E.A No.298/2019 stood abated due to the non-impleadment of the legal representatives of the judgment debtor. It is to be noted that the result of E.A No.298/2019 has no consequence in the proceedings of the Execution Petition. The Execution Court erroneously referred to E.A No.298/2019 also in the cause title though the petition stood abated long back.

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It is also important to note that the same contentions were separately raised by additional judgment debtor No.5 by filing objection. Those objections were considered by the Execution Court in paragraph Nos.6 and 7 of the impugned order. Therefore,

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the contention of the learned counsel for the petitioners that the objections raised by the additional judgment debtors were not considered has no substance. It was after considering all those objections the Court allowed the Execution Petition in favour of the decree-holder.

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The learned counsel brought to my notice the endorsement of the Execution Court in Ext.P4 that 'E.A No.298/2019 stands dismissed'. In fact, the Execution Application stood abated due to the non-impleadment of the legal representatives in the application. Since it was a petition filed by the original judgment debtor himself, the decree-holder had no responsibility to bring the legal representatives of the judgment debtor into the party array.

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The resultant consequence is that E.A No.298/2019 stood abated. The judgment debtors, without getting themselves impleaded in the Execution Petition, preferred to file separate objections, which were considered by the Execution Court while allowing the Execution Petition. Therefore, the abatement of E.A

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No.298/2019 has absolutely no consequence in the order allowing

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the Execution Petition.

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The Original Petition (Civil) stands dismissed.

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Sd/K.BABU, JUDGE

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KAS

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APPENDIX OF OP(C) 1503/2022

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PETITIONER EXHIBITS

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ExhibitP1 TRUE COPY OF EXECUTION PETITION DATED 21 -03-2017 IN EP. NO. 38/2017 IN O.S. NO. 512/1990, ON THE FILES OF THE MUNSIFF’S COURT, CHERTHALA

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Exhibit2 TRUE COPY OF THE OBJECTIONS DATED 01– 01–2022 FILED BY THE 3RD PETITIONER/4TH JUDGEMENT DEBTOR IN EP. NO. 38/2017 IN O.S. NO. 512/1990, ON THE FILES OF THE MUNSIFF’S COURT, CHERTHALA

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ExhibitP3 TRUE COPY OF THE ORDER DATED 03–08–2022 IN EA. NO. 298/2019 IN EP. 38/2017 IN OS. NO. 512/1990 OF THE ADDL.MUNSIFF COURT, CHERTHALA

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ExhibitP4 TRUE COPY OF ORDER DATED 03–08–2022 IN EP. 38/2017 IN O.S. 512/1990, ON THE FILES OF THE MUNSIFF’S COURT, CHERTHALA

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RESPONDENT EXHIBITS

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Exhibit-R1(a) TRUE COPY OF THE ADDRESS FURNISHED BY THE COUNSEL OF THE 2ND RESPONDENT/ADDITIONAL 3RD JUDGMENT DEBTOR IN E.P. NO.38/17 IN O.S. NO.512/1990 ON THE FILE OF MUNSIFF COURT, CHERTHALA

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Exhibit-R1(b) TRUE COPY OF THE DELIVERY KYCHIT IN E.P. NO.68/2012 IN O.S. NO.512/1990 ON THE FILE OF MUNSIFF COURT, CHERTHALA

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Exhibit-R1(c) TRUE COPY OF VAKKALATH OF THE PETITIONERS IN O.S. NO.512/1990 DATED 21.1.2022 Exhibit-R1(d) TRUE COPY OF THE VAKKALATH OF 2ND RESPONDENT IN O.S. NO.512/1990 DATED 26.4.2022 Exhibit-R1(e) TRUE COPY OF E.A. NO.298/2019 IN E.P. NO.38/2017 IN O.S. NO.512/1990 ON THE FILE OF MUNSIFF COURT, CHERTHALA DATED 29.8.2019 Exhibit-R1(f) TRUE COPY OF OBJECTION TO EXHIBIT -R1(E) DATED NIL FILED BY 1ST RESPONDENT HEREIN Exhibit-R1(g) TRUE COPY OF THE COMPLAINT LODGED BY ORIGINAL JUDGMENT DEBTOR BEFORE THE DY.S.P., CHERTHALA DATED 1.10.2012 Exhibit-R1(h) TRUE COPY OF THE COMPLAINT BEFORE THE DISTRICT COLLECTOR, ALAPPUZHA SUBMITTED BY ORIGINAL JUDGMENT DEBTOR DATED 11.10.2012 Exhibit-R1(i) TRUE COPY OF THE NOTICE OBTAINED BY THE 1ST RESPONDENT HEREIN FROM THE COLLECTORATE, ALAPPUZHA BEARING NO.C445465/17 DATED 9.5.2018 Exhibit-R1(j) TRUE COPY OF PROCEEDINGS OF THE SUB COLLECTOR, ALAPPUZHA DATED 4.4.2016 NO.J-5981/15/K.DIS Exhibit-R1(k) TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 25.10.2017 NO.C4-33147/10.K.DIS

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Exhibit-R1(l) TRUE COPY OF THE JUDGMENT OF THIS HON’BLE COURT DATED 29.11.2021 IN O.P. (C) NO.231/2021 Exhibit-R1(m) TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE DY.S.P. OF POLICE, CHERTHALA DATED 5.9.2022 AND ITS RECEIPT Exhibit-R1(n) THE PHOTOGRAPH SHOWING TIPPER LORRY BEARING REGISTRATION NO.KL-07 BS 5111 Exhibit-R1(o) THE PHOTOGRAPH SHOWING UNLOADING RED SAND Exhibit-R1(p) PHOTOGRAPH OF PRESENCE OF 2ND RESPONDENT Exhibit-R1(q) TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.512/90 ON THE FILE OF MUNSIFF COURT, CHERTHALA DATED 10.7.1995 Exhibit R1(r) TRUE COPY OF THE JUDGMENT DATED 29.10.2011 IN A.S. NO.91/2003 OF THE SUB COURT, CHERTHALA Exhibit R1(s) TRUE COPY OF THE DECREE DATED 29.10.2011 IN A.S. NO.91/2003 OF THE SUB COURT, CHERTHALA

Saraswathiamma v. Manuel

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Saraswathiamma v. Manuel

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