Sherly vs Hari Kumar, Sreedharan and Abhilash

Thomas P. Joseph, J.—Respondents are served but they remain absent. Ext. P5, order dated 04.09.2012 in E.P. No. 59 of 2011 in O.S. No. 123 of 2000 of Munsiff''s Court, Kottarakkara to the extent it did not direct respondents to restore plaint A schedule to its original position is under challenge in this proceedings.

Petitioners have obtained Ext. P1, judgment and Ext. P2, decree in their favour as per which respondents are restrained form trespassing into the plaint A schedule property, destroying its boundary Kayyala, annexing any portion of plaint A schedule to the plaint B schedule path way, cutting down and removing trees from the plaint A schedule and against committing any other act of waste and mischief in the said property.

Alleging that respondents and men in violation of Ext. P2, decree trespassed into the plaint A schedule and committed mischief by removing a portion of plaint A schedule for widening plaint B schedule way on 18.09.2011, petitioner filed E.P. No. 59 of 2011 under Rule 32 of order XXI of the CPC (for short the code) praying, inter alia that respondents may be directed to restore plaint A schedule to its original position and in case they do not do so, permit petitioners to do so and realise its expenses from the respondents.

Though respondents resisted E.P. No. 59 of 2011, executing court by Ext. P5 order found that respondents violated the decree as claimed by petitioners and consequently directed their detention in the civil prison for a period of three months. There was however, no direction to the respondents to restore the plaint A schedule to it original position or, allowing petitioners to do so and realise its expenses from the respondents.

Learned counsel submits that while so, respondents filed Ext. P6, affidavit in the executing court undertaking to restore plaint A schedule to its original position and requesting to keep the order of detention in the civil prison in abeyance. Acting upon Ext. P6, executing court passed Ext. P7, order keeping further proceedings pursuant to Ext. P5, order in abeyance till 16.10.2012.

Learned counsel submits that respondents, in view of the finding in Ext. P5, are bound to restore plaint A schedule to its original possession.

I have gone through Ext. P5, and find that the executing court has found on evidence that respondents violated the decree and committed mischief with respect to the plaint A schedule. Ext. P5, order only directs detention of respondents in the civil prison.

Under Rule 32(5) of order XXI of the Code, where a decree for injunction is not obeyed, it is within the power of the executing court to, instead of or in addition to the procedure prescribed in the foregoing Sub Rules of Rule 32 to direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the court at the cost of judgment debtor.

In E.P. No. 59 of 2011, petitioners prayed that there may be a direction to the respondents to restore plaint A schedule to its original position and in case respondents do not do so, allow petitioners do so and realise expenses from the respondents.

Having heard learned counsel, I am inclined to permit petitioners restore plaint A schedule to its original position and realise expenses from the respondents. To that extent, Ext. P5, order requires interference. Resultantly this original petition is allowed as under:

Ext. P5, order dated 04.09.2012 in E.P. No. 59 of 2011 in O.S. No. 123 of 2000 of Munsiff''s Court, Kottarakkara is modified to the following extent.

Petitioners are permitted to restore plaint A schedule to its original position through the Amin of the court and under the supervision of an Advocate Commissioner to be appointed by the executing court (if possible, the same Advocate Commissioner who submitted report in the executing court) and realise its expenses from the respondents and their assets if any.

If for the above work assistance of the police is required, it is open to the petitioners to request the executing court for appropriate orders in that regard.

It is made clear that modification of Ext. P5 order is only to the above extent.