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2002 DIGILAW 760 (KER)

Wilson P Kuriakose v. Subhas

2002-11-20

A.LEKSHMIKUTTY

body2002
Order A. Lekshmikutty, J. 1. This Civil Revision Petition is filed by the decree holders against the order in E.A. No. 57 of 1999 in E.R No. 39 of 1997 in O.S. No. 257 of 1988 on the file of the Munsiffs Court, Moovattupuzha. The revision petitioners are the decree holders in the above said suit. The suit is filed for a decree of mandatory injunction to direct the defendants to remove the earthern pipe which was put in the property of the decree holders for draining foul water from the hotel of the second judgment debtor. The suit was decreed and the second judgment debtor was granted one year time to remove the earthern pipe unauthorisedly put by him. Even after the expiration of one year, the second judgment debtor did not remove the pipe and hence the revision petitioners filed E.R 39 of 1997 for execution of the decree. 2. The second judgment debtor filed objection and contested the execution petition. On consideration of the objection, the Execution Court appointed an Advocate Commissioner to remove the earthern pipe which was put in the property of the decree holders. When.the Advocate Commissioner went to the spot, he was obstructed by one M.M. Thomas, brother inlaw of the second Judgment Debtor Onachan at the instance of the second judgment debtor claiming that his wife Mary was the owner of the property in which the hotel was situates. While so, the additional judgment debtor filed a suit as O.S. No. 235 of 1997 before the Munsiffs Court, Moovattupuzha along with one Narayanan Nair for a decree of permanent injunction restraining the revision petitioners from causing any obstruction to the draining of the waste water from the hotel. The allegation was that the hotel was being conducted by them and the petitioner is trying to remove the pipe which was used for draining waste water from their hotel. The suit was subsequently dismissed as not pressed. 3. The respondent herein then filed O.P. No. 9437 of 1997 before this court for a direction against the Assistant Executive Engineer, Public Works Department (Roads), Pirayom from destroying or removing the pipe line used by him from draining out waste water. The suit was subsequently dismissed as not pressed. 3. The respondent herein then filed O.P. No. 9437 of 1997 before this court for a direction against the Assistant Executive Engineer, Public Works Department (Roads), Pirayom from destroying or removing the pipe line used by him from draining out waste water. This court disposed of the Original Petition directing the Assistant Executive Engineer to dispose of the representation submitted by the respondent and also directed that the pipe line shall not remove until the representation was disposed of. 4. Thereafter, the respondent filed another Original Petition before this Court for a direction to the Assistant Executive Engineer, Public Works Department, the revision petitioners and the Advocate Commissioner against removing the pipe line. The Advocate Commissioner on receiving the notice declined to take any further action in the matter. Subsequently, the Original Petition was dismissed. Thereafter, he filed O.S. No. 273 of 1999 against the revision petitioners for a permanent injunction restraining them from causing any obstruction to the draining of the waste water from his. property. No interim order was passed by the Trial Court in the said suit. 5. Thereafter, the respondent filed an execution application seeking to get himself impleaded as additional judgment debtor in the execution petition. The decree holders filed a detailed objection, but without considering the objection the court below allowed the impleading application and the respondent was impleaded as additional third judgment debtor. Then the respondent filed E.A. No. 57 of 1999 under O.21, R.29 of the C.P.C. for stay of execution proceedings. The revision petitioner opposed the application. In spite of the opposition, the court below passed the impugned order, against which this revision is filed. 6. The question to be considered is whether there is any reason to interfere with the impugned order. There is no dispute with regard to the fact that a decree of mandatory injunction was passed against the second judgment debtor to remove the unauthorised pipe laid in the plaint schedule property for draining filthy water and waste material to the plaint schedule property within one year. In case of failure of condition, the decree holders were allowed to execute the decree through the court. Since the original judgment debtor did not comply with the direction, the decree holders filed E.R No. 39 of 1997. In case of failure of condition, the decree holders were allowed to execute the decree through the court. Since the original judgment debtor did not comply with the direction, the decree holders filed E.R No. 39 of 1997. The execution court has appointed an Advocate Commissioner to remove the pipe which was laid through the property of the decree holders. As per the petitioners, at the instance of the judgment debtor execution of the decree was obstructed by one M.M. Thomas, brother inlaw of the petitioners. Then again at his instance, the present respondent filed Original Petitions before this court and Original Suit No. 235 of 1997 before the lower court. The said suit was dismissed. Thereafter the respondent filed another suit O.S. No. 273 of 1999 against the decree holder for a decree of permanent injunction which is now pending. He then filed an execution application seeking to get himself impleaded as additional judgment debtor in the execution petition. Discarding the objections filed by the decree holder, the respondent was impleaded as additional third judgment debtor in the execution petition. After getting himself impleaded he filed E.A No. 57 of 1999 under O.21, R.29 of the Civil Procedure Code for the stay of execution proceedings and the execution court stayed the proceedings. Order XXI Rule 29 of the Civil Procedure Code read as follows: Where a suit is pending in any Court against the holder of a decree of such court or of a decree which is being executed by such Court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided : 7. It seems that the court below misunderstood the said Rule and stayed the execution proceedings. As per the said Rule, in order to stay the execution proceeding, a suit must be pending against whom a decree was passed. Here in this case, no decree was passed against the respondent, who is the additional third judgment debtor. The decree is passed against the second judgment debtor. So, the court below went wrong in staying the execution proceedings against whom no decree was passed and no execution petition is pending. Here in this case, no decree was passed against the respondent, who is the additional third judgment debtor. The decree is passed against the second judgment debtor. So, the court below went wrong in staying the execution proceedings against whom no decree was passed and no execution petition is pending. Even as per the allegation of the respondent, he is a tenant of the hotel under the second judgment debtor after the decree. If that be so, the court below was not justified in staying the execution proceedings on the application of the respondent. The impugned order is illegal, irregular and improper and it requires interference. Hence the order under challenge is set aside and the Civil Revision Petition is allowed. The respondent is liable for the costs of the revision petitioners. The C.R.P. is allowed as stated above.