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2014 DIGILAW 1108 (MAD)

S. K. Karumbayiram v. A. Vaiyapuri

2014-06-03

R.KARUPPIAH

body2014
Judgment R. Karuppiah, J. 1. This Civil Revision Petition has been filed by the revision petitioners/decree holders against the order, dated 6.2.2007 made in E.P. No. 54 of 2004 in O.S. No. 20 of 1989 on the file of the District Munsif Court, Sankari. 2. For the sake of convenience the decree holders/plaintiffs are referred as revision petitioners and Judgment Debtors/defendants are referred as respondents hereafter. 3. Heard the learned counsel appearing on either side. 4. Admittedly, the revision petitioners filed a suit in O.S. No. 20 of 1989 on the file of the Principal District Munsif Court, Sankari, for declaration and three other consequential reliefs and the trial Court has granted two reliefs sought for by the revision petitioners but rejected the remaining two reliefs. Aggrieved over the rejection of the two reliefs sought for by the revision petitioners, the revision petitioners have preferred a first appeal in A.S. No. 94 of 1997 on the file of the Subordinate Court, Sankari. The First Appellate Court has granted the above said reliefs also which were already rejected by the trial Court. As per the decree passed by both the Courts below, the revision petitioners/decree holders filed Execution Petition in E.P. No. 54 of 2004 under Order 21 Rule 11 of the Code of Civil Procedure, to execute the mandatory injunction granted by both Courts below, failing which, they will be sent to civil jail and also to impose fine of Rs. 500/- to each respondents. 5. In the above said Execution Petition, the first respondent has filed counter, in which it is stated that the first respondent is nothing to do with the shifting of the electric poles from its original position and therefore prayed for to dismiss the petition against the first respondent. 6. The fourth respondent has filed a detailed counter and adopted by the respondents 2 and 3, in which it is stated that the respondents have informed the petitioners to take effect for clearing coconut trees in the land owned by the first respondent and arranged for a shifting the poles. It is further stated that the respondents have estimated the expenses for shifting of poles as Rs. 7,970/- and directed the petitioners to deposit the amount and then only able to comply with the relief sought for by the petitioners in the Execution Petition. It is further stated that the respondents have estimated the expenses for shifting of poles as Rs. 7,970/- and directed the petitioners to deposit the amount and then only able to comply with the relief sought for by the petitioners in the Execution Petition. Further it is stated that the petitioners have no locus standi to file petition for contempt proceedings against the respondents. 7. The Executing Court has accepted that the petitioners have deposited Rs. 500/- as per Ex.P-5 to the respondents 2 to 4, but the Executing Court has rejected the petition only on the ground that there are ten coconut trees nearby the electric poles and if the electric poles removed, the above said trees will be fell down and hence, rejected the reliefs sought for in the Execution Petition. 8. The learned counsel appearing for the petitioners would submit that as per the decree, the respondents 2 to 4 should shifting the electric poles and then collected the expenses from the petitioners and further, the petitioners have already deposited Rs. 500/- and therefore, the respondents 2 to 4 have not complied with the direction of the trial Court. 9. Per contra, the learned counsel appearing for the respondents 2 to 4 would submit that the respondents 2 to 4 estimated the expenses at Rs. 7,970/- and as per the decree, the revision petitioners should pay the expenses for shifting the electric poles, but not deposited by the revision petitioners and therefore, the respondents 2 to 4 are unable to shift the electric poles as per the decree. 10. A perusal of the order of the Executing Court would reveal that the Executing Court has not rejected the prayer on the ground that the petitioners have not paid the expenses for shifting the poles, but the Executing Court has rejected the prayer only on the ground that if the poles are shifted, the coconut trees will be affected. Therefore, the reason for rejecting the Execution Petition stated by the Executing Court is illegal and unsustainable as rightly pointed out by the learned counsel appearing for the revision petitioners. 11. Now, the learned counsel appearing for the revision petitioners agreed to deposit the estimated amount of Rs. 7,970/- by the respondents 2 to 4. Therefore, the reason for rejecting the Execution Petition stated by the Executing Court is illegal and unsustainable as rightly pointed out by the learned counsel appearing for the revision petitioners. 11. Now, the learned counsel appearing for the revision petitioners agreed to deposit the estimated amount of Rs. 7,970/- by the respondents 2 to 4. The learned counsel appearing for the respondents 2 to 4 also agreed to install the electric poles as directed by the First Appellate Court, if the above said amount paid by the revision petitioners. 12. In view of the above said submissions, this Court is of the view that the petitioners is liable to deposit the above said estimated amount of Rs. 7,970/- and on such deposit the fourth respondent liable to shift the electric poles as directed by the First Appellate Court in the above said decree. Further this Court is of the view that the Execution Petition against the first respondent is liable to be dismissed, since the relief sought for in the Execution Petition is only against the respondents 2 to 4. 13. In the result, the Civil Revision Petition is partly allowed and the revision petitioners are directed to pay the estimated expenses of Rs. 7,970/- within a period of two weeks from the date of receipt of a copy of this order and the fourth respondent is directed to install the electric poles as per the First Appellate Court decree, within a period of four weeks thereafter. If any excess amount incurred by fourth respondent for installation, the fourth respondent is entitled to collect the above said amount from the revision petitioners after shifting the electric poles. No costs.