Kerala High Court
Sajimon vs Aliyar
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 30TH DAY OF AUGUST 2017/8TH BHADRA, 1939
OP(C).No. 2619 of 2017 (O)
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PETITIONER:
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SAJIMON
S/O ALIKUNJU, AGED 43 YEARS,
MADATHIL HOUSE,
KEEZHMAD KARA, ALUVA EAST VILLAGE,
ALUVA TALUK.
BY ADVS.SRI.T.KRISHNANUNNI (SR.)
SRI.C.A.NAVAS
RESPONDENTS:
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1. ALIYAR
S/O VEERAN, AGED 70 YEARS,
KUNJATHI HOUSE,
VENGOLA KARA, VENGOLA VILLAGE,
ERNAKULAM DISTRICT.PIN.683 554.
2. FATHIMA
W/O ALIYAR, AGED 65 YEARS, KUNJATHI HOUSE,
VENGOLA KARA, VENGOLA VILLAGE, ERNAKULAM DIST.
PIN.683554.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30-08-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2619 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 17.6.2015 IN O.S NO.301/2007
ON THE FILE OF THE COURT OF THE MUNSIFF OF PERUMBAVOOR.
EXHIBIT P2 TRUE COPY OF THE ORDER DTD 18.8.2017 IN E.A NO.143/2017 IN E.P
NO. 88/2015 IN O.S NO. 301/2007 MUNSIFF COURT, PERUMBAVOOR.
RESPONDENT(S)' EXHIBITS NIL
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// True copy //
P.A. To Judge
rmm
K.RAMAKRISHNAN, J.
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O.P.(Civil) No.2619 of 2017
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Dated this the 30th day of August, 2017
J U D G M E N T
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This petition has been filed challenging Ext.P2 order passed by the court below in E.A.No.143/2017 in E.P. No.88/2015 in O.S.No.301/2007 on the file of the Munsiff Court, Perumbavoor under Article 227 of the Constitution of India.
2. It is alleged in the petition that petitioner herein filed O.S.No.301/2007 on the file of the Munsiff Court, Perumbavoor for a declaration that the plaint schedule pathway is a private pathway and the defendants have no right over the same. The respondents herein entered appearance and filed written statement and also raised a counter claim contending that the pathway is not the private pathway of the plaintiff and he had also acquired right of user of the pathway by easement by grant and so he sought for a declaration to that effect and also injunction restraining the plaintiff from obstructing the user of the pathway by the counter claim plaintiff who are O.P.(Civil) No.2619 of 2017 2 the defendants in the suit.
3. The trial court by Ext.P1 judgment decreed the suit in part and allowed the counter claim against which an appeal has been preferred and that was dismissed and thereafter second appeal has been preferred as R.S.A No.264/2017, which is pending before this Court. In the meantime, the respondents filed E.P.No.88/2015 for enforcement of the decree in the counter claim and also filed E.A.No.143/2017 for issuing direction to the Station House Officer, Perumbavoor to give assistance to the Amin to enforce the decree in the counter claim and this was allowed by the court below by Ext.P2 order which is under challenge.
4. Heard Sri.T.Krishnanunni, Senior Counsel appearing for the petitioner and Sri.G.Rajagopal counsel who appeared for the respondents, as directed by this Court as he was appearing in the second appeal as a caveator.
5. The Senior Counsel appearing for the petitioner submitted that right of the user of the pathway is in O.P.(Civil) No.2619 of 2017 3 dispute. During the pendency of the second appeal, the right of the parties will have to be protected. Further no enquiry under Order 21 Rule 32 has been conducted by the court below as to whether there was any obstruction caused by the petitioner before granting the relief.
6. On the other hand counsel for the respondents submitted that the counter claim has been decreed and no appeal has been preferred against that. They are only challenging the decree in the suit alone. So there is no necessity to stay the proceedings. Further in the second appeal though it was argued at length, no stay was granted and the appeal itself was not admitted by this Court.
7. It is an admitted fact that the petitioner herein filed O.S.No.301/2007 before the Munsiff Court, Perumbavoor for an injunction restraining the respondents herein from trespassing into the disputed pathway on the ground that it is his private pathway. It is also not in dispute that respondents have entered appearance and filed written statement denying the O.P.(Civil) No.2619 of 2017 4 exclusive right of the plaintiff to use the pathway as private pathway and also raised a counter claim that they are also entitled to use the pathway by way of grant and sought for a declaration and injunction to that effect. It appears that earlier the suit was dismissed and counter claim was allowed and an appeal has been preferred by the petitioner. According to the counsel for the respondents, the question regarding counter claim was confirmed by the appellate court, but remanded the case only for the purpose of considering a certain aspects which has been raised by the plaintiff alone. Though an FAO was filed by the respondents before this Court that was also disposed of by this Court giving certain directions to the trial court as to how the remand order has to be considered. It is thereafter that the suit was decreed in part and counter claim was also decreed. Though an appeal has been preferred that was dismissed, against which a second appeal is pending as RSA No.264/2017. It is also an admitted fact that second appeal has not been admitted and no stay has been O.P.(Civil) No.2619 of 2017 5 granted regarding the execution of the decree in the counter claim.
8. During the pendency of the 1st appeal, it appears that an execution petition has been filed as E.P No.88/2015 before the Munsiff Court, Perumbavoor and after the disposal of the first appeal, the respondents filed E.A.No.143/2017 for enforcing the injunction decree in the counter claim with the help of police, which has been granted by the trial court as per Ext.P2 impugned order. It is seen from Ext.P2 order, that the only objection raised was that the second appeal is pending. The court below observed that since there was no stay order, the decree holder is entitled to execute the decree. It is on that basis that Ext.P2 order has been passed. However, the only ground that has been raised by the the petitioner in the writ petition is that no enquiry under Order XXI Rule 32 has been conducted. It may be mentioned here that before passing an order, an enquiry has to be conducted under Order XXI Rule 32 before coming to the conclusion as to whether there was wilful disobedience of the decree O.P.(Civil) No.2619 of 2017 6 passed by the judgment debtor. But the fact that the user of the pathway has not been allowed by the plaintiff, which prompted the respondents to file the petition itself shows that there was some obstruction to the user of the pathway, on the strength that the second appeal is pending.
9. When the writ petition came up for hearing on the last hearing date, this Court has noted the undertaking given by counsel for the petitioner that he is not obstructing the user of the pathway and as such there is no necessity for police assistance for enforcement of the decree. It is on the basis of that undertaking given by the counsel that this court has directed the court below to keep the enforcement of Ext.P2 order in abeyance. This Court feels that the interim order passed by this Court can be allowed to continue. But at the same time, if any physical obstruction has been caused by the petitioner herein to the user of the pathway by the respondent, then they are at liberty to move the execution court again for enforcement of Ext.P2 order and the court below after O.P.(Civil) No.2619 of 2017 7 conducting enquiry as to whether there was any obstruction caused as contended by the respondents, and if it is satisfied with that complaint, then court below can revive the order and enforce the same to enable the petitioner to use the pathway.
With the above directions and observations this petition is disposed of.
Sd/-
K.RAMAKRISHNAN JUDGE rmm/31.08.2017