JAMESKUTTY JACOB Vs. K P THRESSIYAMMA

JUDGEMENT

(1.) The petitioner filed O.S. No.8 of 1992 before the Subordinate Judge's Court, Sultan Bathery, for recovery of possession and prohibitory injunction against trespass. The suit was decreed as per Ext.P1 judgment dated 29.02.2000. The judgment and decree were challenged by the defendant before the Additional District Court, Kalpetta in A.S. No.8 of 2000 which was dismissed. Challenging the said judgment, Second Appeal was filed before this Court as RSA No.200 of 2005 which came to be dismissed as per judgment dated 24.07.2012. Though the defendants approached the Apex Court, they were not successful. Thereafter, in E.P 100 of 2003, the decree was executed and the property with the building thereon bearing No.352 in Ward No.VII of Vythiri Panchayat was delivered over to the decree holder on 11.02.2013. The delivery is evidenced by Ext.P3 delivery kaichit.

(2.) Alleging that after the delivery, on 11.03.2013, the respondents/judgment debtors again trespassed into the building situated in the plaint schedule property, the decree holder filed E.P. No.29 of 2013 and E.A. No.94 of 2013. The prayer in the execution petition was for arrest of the respondents for violation of the decree and judgment, and also for damages. In E.A. No.94 of 2013 the prayer sought for was to cause arrest and removal of the respondents from the building situated in the plaint schedule property. Though time was granted to the defendants to file objection, no objection was filed and they were set ex parte.

(3.) Learned counsel for the respondents/defendants would contend that the decree for recovery of possession was already executed and the decree was satisfied. The second execution petition could not be maintained alleging subsequent trespass by the respondents. It is contended that the subsequent trespass only gives rise to a fresh cause of action, enabling the petitioner/plaintiff to file a fresh suit if he so chooses. It is further contended that though in the suit O.S. No.8 of 1992 a decree for prohibitory injunction against trespass was also sought for, as seen from the decretal portion of the judgment, there is no decree for prohibitory injunction. According to the learned counsel, execution petition has been filed by the petitioner on the assumption that there is a decree for prohibitory injunction and that the same has been violated by the respondents/defendants. It is accordingly that in the execution petition, the petitioner has prayed for detention of the respondents in civil prison for violation of the decree.