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Kerala High Court · body

2009 DIGILAW 1128 (KER)

Abraham v. Chellan

2009-11-25

S.S.SATHEESACHANDRAN

body2009
Judgment : Petitioner is the decree holder in O.S.No.81 of 1999 on the file of the Munsiff-Magistrate Court, Mannarkkad. Decree executed is one passed in a suit for perpetual prohibitory injunction. Respondents are the defendants. Decree holder moved an application under Order XXI Rule 32 of the CPC alleging that the respondents have violated the decree and so much so, they must be proceeded against for enforcing the decree of injunction. Respondents resisted the application by filing objections. The learned Munsiff dismissed the execution petition, after hearing both sides, holding that the plaint property in respect of which the decree of injunction was granted in favour of the decree holder has not been properly identified and so much so, it cannot be executed in the manner sought for by the decree holder. Propriety and correctness of that order is challenged in the revision. 2. I heard the counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and it is dispensed with. 3. Needless to point out that the execution of decree for specific performance, restitution of conjugal rights and decree of injunction contemplate of a different mode of execution than that of other enforceable decrees passed by civil court in as much as in these types of decrees the violation of the decree alone confers right on the decree holder to proceed against the opposite party. It is for enforcing the decree and thereby upholding the majesty of the court certain provisions as distinct and different from other enforceable decrees are provided by Order XXI Rule 32 of the CPC. A decree for restitution of conjugal rights, if disobeyed, under the rule may be enforced by attachment of the property of the judgment debtor. In respect of decree for specific performance and for injunction, in the event of disseverance, enforceability is by ordering detention of the judgment debtor in civil prison or by the attachment of his property or both. Once an attachment is passed under the rule, but it continues for six months without the decree being obeyed and complied by the opposite party, the rule also enables the decree holder to proceed against the attached property by bringing it to sale. Once an attachment is passed under the rule, but it continues for six months without the decree being obeyed and complied by the opposite party, the rule also enables the decree holder to proceed against the attached property by bringing it to sale. Of course, sub rule (5) of Rule 32 of Order XXI of CPC enable the execution court to pass appropriate orders as to the "act required to be done" which are found necessary for enforcing the decree passed by the court. Such orders, needless to point out, depend upon the satisfaction of the court as to its requirement on the facts presented. Before proceeding against the judgment debtor for violating a decree of injunction, prima facie, the court should first of all enter a finding that he had violated the decree. Then only the question of attaching his property or ordering his detention will arise. When a decree of injunction is granted in respect of an immovable property to determine the question whether the judgment debtor has violated the decree it is imperative that the identity of the property must be established with precision. The decree executed in the present case has been passed exparte. Though a commissioner was deputed and a report collected, it appears, it was not based on measurement of the property, most probably, for the reason the defendants remained exparte. A copy of the execution petition produced by the revision petitioner/decree holder contain a description of the decree schedule property. The description of the property, prima facie, indicate it cannot be properly determined and identified without the assistance of a surveyor under the supervision of an advocate commissioner. The decree schedule property is stated as having extent of one acre forming part of survey No.1841/1 of Agali Desom, and its boundaries are shown to be separated by the properties of the defendants. Prima facie from the description so provided it is evident its identification without proper measurement is not possible. When that be the case, I find no impropriety in the conclusion reached by the court below that the decree as desired by him cannot be executed against the defendants since the property has not been properly identified in trial. No interference with the order passed by the learned Munsiff in the circumstance is called for. When that be the case, I find no impropriety in the conclusion reached by the court below that the decree as desired by him cannot be executed against the defendants since the property has not been properly identified in trial. No interference with the order passed by the learned Munsiff in the circumstance is called for. It is open to the petitioner to take appropriate steps in appropriate proceedings for identifying the decree schedule property to protect his rights over the property. Reserving his right to do so, as provided by law, if so advised, the revision is closed.