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2001 DIGILAW 587 (KER)

Rajan Mohanan v. Divakaran

2001-10-19

K.A.MOHAMMED SHAFI

body2001
Judgment :- K.A. Mohamed Shafi, J. This C.M.P. under S.151 of the C.P.C. is filed by the revision petitioners in C.R.P. No. 861/2001 seeking a clarification of the order passed by this Court in the C.R.P. dated 26.07.2001 by allowing the petitioners to install the name board at an enhanced height to be fixed by this Court. 2. In O.S.62/96 filed by the respondents herein as plaintiffs the Munsiff s Court, Pala passed a decree declaring the prescriptive easement right of the plaintiffs-respondents over the plaint schedule item No. 3 road and restraining the defendants from installing any gate or obstructing the use of the plaint schedule item No. 3 road by the plaintiffs or altering its nature or committing any mischief therein. That decree became absolute since no appeal is preferred by the defendants. Subsequently the decree-holders filed E.P. No. 48/2000 under 0.21 R.32 of the C.P.C. alleging violation of the decree passed in the suit against the defendants. The allegation is that the judgment debtors installed a board on two pillars at the bell-mouth of item 3 road in violation of the decree causing obstruction to the plaintiffs decree-holders from taking lorry through item 3 road. The judgment debtors 4 and 5 contended that the name board of the temple was put up on the pillars erected at the bell-mouth of item 3 road and they have not done any act against the prescriptive right of easement declared in favour of the decree-holders or causing any obstruction to the use of the road by the decree-holders and as such they have not violated the decree passed in the suit. 3. After enquiry the executing court found that the judgment debtors violated the decree passed by the court by placing the name board at a height of 4 metres in item No. 3 and directed the judgment debtors to remove the name board in question and on failure to do so, permitted the decree-holders to remove the same by taking out a commission at their expense and allowed reimbursement of the same from the judgment debtors by order dated 16.2.2001. The judgment debtors 4 and 5 preferred C.R.P. No. 861/2001 before this Court challenging the order passed by the executing court. The judgment debtors 4 and 5 preferred C.R.P. No. 861/2001 before this Court challenging the order passed by the executing court. This Court by order dated 26.7.2001 found that there is violation of the decree by the revision petitioners and the order passed by the executing court directing the judgment debtors to remove the name board in question placed above item 3 road is perfectly legal and valid and justified under the facts and circumstances of the case., Accordingly this Court dismissed the C.R.P. confirming the order passed by the executing court. 4. Now the above petition is filed by the revision petitioners under S.151 of the CPC seeking an order permitting them to install the name board at an enhanced height to be fixed by this Court by way of clarification of the order passed in the C.R.P. 5. The respondents 1 & 2 - decree-holders vehemently opposed this application by filing a detailed counter-affidavit. They have contended that the above petition is not sustainable under law and it is a sheer abuse of the process of court. They have contended that in spite of the fact that the executing court as well as this Court found that the revision petitioners have violated the decree for injunction passed by the trial court against them and directed them to remove the obstruction, without complying with the order passed by the executing court as confirmed by this Court the revision petitioners have come up with the above absolutely unsustainable petition by way of seeking the alleged clarification which is not permissible under law. Therefore, they have contended that the above petition should be dismissed with exemplarary cost to respondents 1 and 2. 6. As already noted; the decree passed by the trial court granting declaration and injunction sought for by respondents 1 and 2 has become final as it is not challenged in appeal. In the application filed by the decree-holder under 0.21 R.32 of the C.P.C. the executing court as well as this Court found that there is violation of the decree passed against the revision petitioners. In the application filed by the decree-holder under 0.21 R.32 of the C.P.C. the executing court as well as this Court found that there is violation of the decree passed against the revision petitioners. The revision petitioners have not contended either before the executing court or in the revision that they may be permitted to put up the board at the bell-mouth of the road at an enhanced height without causing any obstruction or hindrance to the easementary right of way through the road declared in favour of the decree-holders. Even such a contention cannot be entertained in an application filed by the decree-holders to take action against the judgment debtors for violation of the decree under 0.21 R.32 of the CPC. It is also pertinent to note that the petitioners have not moved either the trial court or the executing court so far seeking permission to put up the name board at the bell-mouth of the road without causing any hindrance or obstruction to the easementary right declared in favour of the decree holders. Had such a petition filed by the petitioners before the concerned court, the court could have considered whether such a prayer can be allowed in accordance with law and in the interests of justice. But in a petition seeking action for violation of the decree for injunction passed by the court filed by the decree-holders, such an application by invoking the inherent jurisdiction of the Court under S.151 of the CPC without challenging the order passed by the executing court as confirmed by this Court in an appropriate proceedings before the appropriate forum is absolutely unsustainable. Entertainment of such applications under S.151 of the CPC in the guise of clarification of the considered order passed by the executing court on the basis of the evidence on record and confirmed by this court in revision will not only pay premium to the judgment debtors who have violated the decree, but it will create very serious inroads into the very system of administration of justice. Therefore, the above application seeking clarification of the order passed by this Court in the C.R.P. by invoking the provisions of S.151 of the C.P.C. is absolutely unsustainable. Hence this C.M.P. is dismissed.