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2005 DIGILAW 751 (KER)

Kalyani Amma v. Krishna Kukrup Achutha Kurup

2005-11-30

S.SANKARASUBBAN

body2005
Judgment :- This Civil Revision Petition is filed against the order passed in E.A.No.53 of 2000 in E.P.No.33 of 1992 in O.S.No.324 of 1981 of the Munsiff’s Court, Pathanamthitta. Petitioners are the respondents in the E.A. The suit was filed by the decree holder against the predecessor in interest of the respondents by name Narayana Kurup. The suit was filed for recovery of possession of B schedule property. The lower court decreed the suit. Against that an appeal was filed as A.S.No.33 of 1999. That appeal was dismissed for default. During the pendency of the appeal, the decree holder – respondent herein filed a petition under Order 39 Rule 1 read with Section 151 of the Code of Civil Procedure (CPC) for an injunction restraining the appellant therein from trespassing into the property or cutting the trees. 2. It appears that the appellant Narayana Kurup violated the order of injunction and the Appellate Court directed the appellant to be detained in prison. But the order was not executed because of his ill-health. Subsequently, he died. Now in the present petition, the decree holder wants to take action against the respondents, who are the legal representatives of Narayana Kurup and for damages. The court has now awarded an amount of Rs.33,750/- from the respondents and their assets. 3. I heard learned counsel for the petitioners and learned counsel for the respondents. 4. According to me, the order passed by the court below cannot be upheld. A petition was filed under Order 39 Rule 2A of the C.P.C. against the predecessor in interest of the respondents stating that he violated the order of injunction. The appellate court found that Narayana Kurup has violated the order and ordered imprisonment. Further an order under Order 39 Rule 2A of C.P.C. cannot be executed through the Executing Court. It is only the court that passed the order that can impose punishment. The decree holder did not have a case that the present petitioners colluded with the original judgment debtor in cutting and removing the trees. In any event, according to me, a petition under Order 39 Rule 2A cannot be filed in the Executing Court. The Executing Court was not correct in ordering damages. That is the finding which should have been passed by the Appellate Court. In the above view of the matter, I set aside the order passed by the court below. In any event, according to me, a petition under Order 39 Rule 2A cannot be filed in the Executing Court. The Executing Court was not correct in ordering damages. That is the finding which should have been passed by the Appellate Court. In the above view of the matter, I set aside the order passed by the court below. Civil Revision Petition is allowed.