Kerala High Court
Zeenath vs Sharafudeen on 16 January, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:4132
O.P (C) No.2124 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
OP(C) NO. 2124 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 31.01.2020 IN EP 28/2019
IN OS NO.348 OF 1996 OF MUNSIFF'S COURT, KOTTARAKKARA
PETITIONER/5TH DECREE HOLDER:
ZEENATH,
AGED 31 YEARS,
D/O. LATE BADARUDEEN, PANAYIL KALPPADA,
KULAMVETTIVILA, VATTAPPARA P.O., KALLAYAM.
BY ADV M.R.RAJESH
RESPONDENTS/JUDGMENT DEBTOR AND DECREE HOLDERS 1 TO 4:
1 SHARAFUDEEN,
S/O. MUHAMMED BASHEER, BISMI MANZIL,
ELIKUNNAM MUKAL, NILAMEL VILLAGE,
KOTTARAKARA TALUK, NILAMEL-691535.
2 SAINAM BEEVI,
W/O. LATE BADARUDEEN, NASEEM MANZIL,
KAITHODU MURI, ELIKKUNNAM MUKAL,
NILAMEL VILLAGE, KAITHODU-691535.
3 NASEERUDEEN,
S/O. LATE BADARUDEEN, NASEEM MANZIL,
KAITHODU MURI, ELIKKUNNAM MUKAL,
NILAMEL VILLAGE, NILAMEL-691535.
2025:KER:4132
O.P (C) No.2124 of 2021
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4 HAYARUNEESA,
D/O. LATE BADARUDEEN, KULAMVETTIVILA,
KARICHIRA, ASARIVILA, KALLAYAM P.O.,
VATTAPPARA-695043.
5 RAFEEKA,
D/O. BADARUDEEN, SPARKKILS, OPP. SIX CENT,
NALANCHIRA P.O.,
THIRUVANANTHAPURAM-695015.
BY ADV LATHEESH SEBASTIAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
16.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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O.P (C) No.2124 of 2021
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K.BABU, J.
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O.P (C) No.2124 of 2021
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Dated this the 16th day of January, 2025
JUDGMENT
The challenge in this Original Petition is to the order dated 31.01.2020 in E.P No.28/2019 in O.S No.348/1996 on the file of the Munsiff's Court, Kottarakara (Ext.P3).
2. The petitioner is the decree-holder No.5. The Original Suit was filed by the father of the petitioner to declare his title over the plaint A and B schedule properties and restrain the defendant by way of a permanent prohibitory injunction from trespassing upon the properties and from committing waste therein.
3. The Trial Court decreed the suit in favour of the original plaintiff. The petitioner alleges that the judgment debtor/defendant violated the decree by demolishing the boundary of the C schedule property and trespassed into it. The petitioner filed Ext.P1 Execution Petition. The petitioner prayed for the following reliefs in the 2025:KER:4132 O.P (C) No.2124 of 2021 4 Execution Petition:
"(i) As the judgment debtor violated the decree for prohibitory injunction, he may be sent to civil prison under Order XXI Rule 32 of CPC.
(ii) To fix the demolished boundary and restore the same to its original position."
4. The learned Munsiff on 31.01.2020 passed the following order in the Execution Petition:
"I perused the Decree. It is seen that the Decree not for fixation of boundary. The 2 nd prayer of EP is not maintainable. Call on" (sic)
5. I have heard the learned counsel for the petitioner and the learned counsel for the respondent No.1.
6. The learned counsel for the petitioner submitted that the finding of the learned Munsiff is against the mandate of Order XXI Rule 32 of CPC. The learned counsel submitted that the decree for prohibitory injunction could be enforced by detention of the disobeying party in the civil prison or by the attachment of his property, or by both. It is submitted that the provision is intended to 2025:KER:4132 O.P (C) No.2124 of 2021 5 enforce the decree for injunction also. It is submitted that the Rule applies to decree for prohibitory and mandatory injunctions. The learned counsel submitted that the explanation to Order XXI Rule 32 makes this aspect clear.
7. The learned counsel for the respondents contended that relief No.2 in the Execution Petition is to redefine the boundary, which persuaded the Court below to pass the impugned order. The learned counsel for the respondents further submitted that the provisions of Order XXI Rule 32 cannot be invoked to redefine a boundary or fix a boundary.
8. In answer to the contention, the learned counsel for the petitioner submitted that the petitioner actually intended by way of relief No.2 to restore the boundary to its original position. The learned counsel submitted that as an abundant caution the petitioner has applied for amending relief No.2 to make the prayer more specific. The learned counsel further submitted that in relief No.2, the petitioner has specifically prayed for fixing the 2025:KER:4132 O.P (C) No.2124 of 2021 6 boundary based on Ext.C3 plan.
9. It appears that the Trial Court comprehended relief No.2 as a relief for fixation of the boundary. It further appears that the phrase 're-fixation' found in relief No.2 led to the confusion.
10. Under Order XXI Rule 32, the Execution Court is empowered to direct the property to be restored to its original position. It is profitable to extract Order XXI Rule 32 of CPC:
"32. Decree for specific performance, for restitution of conjugal rights, or for an injunction.-- (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-
rule (2) has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property 2025:KER:4132 O.P (C) No.2124 of 2021 7 sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, 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 the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
Explanation.- For the removal of doubts, it is hereby declared that the expression "the act required to be done"
covers prohibitory as well as mandatory injunctions."
11. The explanation to sub-rule (5) makes it clear that the Execution Court is empowered to direct the judgment debtor to restore the property to its original position. The Court can 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 the judgment-debtor, and upon the act being done the expense incurred may be ascertained in such manner as the Court 2025:KER:4132 O.P (C) No.2124 of 2021 8 may direct and may be recovered as if they were included in the decree. The explanation, which was incorporated by way of Act 22 of 2002, makes it clear that the 'act required to be done' contained in sub-rule (5) of Rule 32 covers prohibitory as well as mandatory injunctions. In relief No.2, the petitioner had prayed for restoring the property to its original position based on Ext.C3 plan. The Trial Court committed an error in holding that relief No.2 in the Execution Petition is not maintainable. Therefore, interference of this Court under Article 227 of the Constitution of India is warranted to correct the error committed by the Trial Court. The finding of the learned Munsiff that relief No.2 is not maintainable cannot be sustained and it is liable to be set aside. The order dated 31.01.2020 in E.P No.28/2019 in O.S No.348/1996 stands set aside (Ext.P3).
12. The learned counsel for the respondents submitted that the judgment debtor had raised objections on the maintainability of the petition on two grounds:
(a) The Execution Petition is barred by limitation.
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(b) The Legal Representatives of the decree holder are not entitled to execute the decree for injunction.
13. These questions are left open. The matter is remitted to the Trial Court for consideration afresh. The Execution Court shall positively consider the application seeking amendment filed by the decree holder. The question of maintainability of the Execution Petition on the grounds raised by the judgment debtor will also be considered.
The Original Petition (Civil) stands disposed of as above.
Sd/-
K.BABU, JUDGE KAS 2025:KER:4132 O.P (C) No.2124 of 2021 10 APPENDIX OF OP(C) 2124/2021 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE E.P.NO.28/2019 IN OS.NO.384/1996 ON THE FILE OF THE MUNSIFF COURT, KOTTARAKKARA.
Exhibit P2 A TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN EXT.P1.
Exhibit P3 THE TRUE COPY OF THE ORDER DATED 31.1.2020 IN E.P.NO.28/19 IN OS.NO.348/96 MUNSIFF COURT, KOTTARAKKARA.