AJAYAKUMAR Vs. DAMAYANTHI
HIGH COURT OF KERALA
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(1.) The decree holders are the revision petitioners. The decree of prohibitory injunction which was granted by the lower appellate court and confirmed by this Court in appeal is to the following effect: "That the defendants be hereby restrained by a permanent prohibitory injunction from trespassing into plaint schedule properties and from taking usufructs from the plaint schedule property. That the defendants be hereby also restrained from interfering with the plaintiffs in their possession and enjoyment of the plaint schedule properties". Alleging that the above decree has been violated by the judgment debtors, the decree holders filed execution petition before the executing court as E.P.267/93 seeking arrest and detention of the judgment debtors in civil prison. In the said E.R, E.A. No. 38/94 was filed by the decree holders for the deputation of ameen for the construction of a fencing around the decree schedule property after a measurement of the property wish the assistance of taluk surveyor. The application was allowed by the executing court. The respondents/judgment debtors came to this court impugning that order filing CRP 402/94. This Court relying on the decision in Joseph alias Kochu v. Makkaru Pillai, AIR 1960 Ker. 127 , and following Evuru Venkata Subbayya v. Srishti Veerayya, AIR 1969 A.P. 92, and Y. Lakshmaiah v. Esso Eastern Inc., AIR 1974 A.P. 32, and after referring to Kochupennu Ambujakshi v. Velutha Kunju, 1992 (2) KLJ 606 , held that the provisions of O.21 R.32(5) can have application only in the context of execution of decrees for mandatory injunction or any other decree which mandates that a positive act shall be done by the judgment debtors and when the judgment debtors fail to do that act. Accordingly, this Court set aside the order passed by the executing court and remanded the case back to the executing court for continuing with the E.P. under O.21 R.32(l) alone.
(2.) It appears that the order of this Court in C.R.P. 402/94 aroused ideas in the minds of the judgment debtors who allegedly cut and removed certain trees which were standing on the decree schedule property leaving the stumps alone. When this was brought to the notice of the executing court, the judgment debtors took the stand that the trees cut and removed did not stand on the decree schedule property; but they stood on a neighbouring property which had been kept common. Under this circumstance, the decree holder filed E.A. No. 81/02 for the issuance of a commission to determine on the basis of the position of the stamps as to whether the trees stood on the decree schedule property or outside the same. This application was filed by the decree holders after both sides had adduced their evidence on the basis of the remand order passed by this Court and with the objective of belying the evidence adduced by the judgment debtors regarding the position of the trees which had been cut and removed. It was therefore prayed in the commission application that evidence be reopened and commission be issued. The executing court found that the decree holders had many opportunities earlier to take out commission. That court dismissed the application also on the view that the design of the decree holders is to bypass the order passed by this Court in C.R.P. 402/94 and that the decree holders will not be permitted to fill up the lacuna since questions regarding identity of the decree schedule property were to be resolved on the original side and not on the execution side. It is that order which is impugned before me in this revision.
(3.) Heard Sri. Millu Dandapani, Advocate for the revision petitioners and Sri. K.P. Balasubramanyan, Advocate for the respondents. Sri. Millu Dandapani, supplied me with copies of all relevant papers.;
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