This Civil Revision Petition is directed against an order passed by the execution court in an execution proceeding.

2. The skeletal facts first. The plaintiffs (I shall refer to the parties in the manner in which they are ranked in the original suit) asserted that the plaint ‘A’ schedule property belongs to them. To the east of the plaint ‘A’ schedule property, is a puramboke land described road/thodu puramboke. The said land is described as plaint ‘B’ schedule. The plaintiffs asserted that the plaint ‘B’ schedule property is part of a public street by name “L.G Pai Road”, situated to the east of plaint ‘A’ schedule property. The grievance of the plaintiffs was that the said ‘B’ schedule property which is part of the public street by name “L.G. Paid Road” was illegally obstructed by defendants 3 to 5 without any legal authority. The plaintiffs asserted that they have a right to enter the road from every point in their adjoining plaint ‘A’ schedule property and defendants 1 and 2 – the corporation and the government or any other person have no right to construct their access to the public road by putting up construction on the public road/by the side of the public road. They prayed that defendants 1 and 2 may be directed to take necessary action. They further prayed that defendants 3 to 5 may be directed to remove such obstruction from the plaint ‘B’ schedule property which they claimed to be part of the public street.

3. It is unnecessary to advert to the other defendants/alleged trespassers viz., defendants 3 and 5. The petitioner herein is the 4th defendant. The 4th defendant remained ex parte. None of other defendants – defendants 1, 2 3 or 5 raised a contention that the plaint ‘B’ schedule property is not part of a public street. In the absence of such a contention, the learned Munsiff did not raised an issue as to whether the plaint ‘B’ schedule is part of a public street. Defendants 1 and 2 took the contention that they have done and are doing the needful to remove the obstruction. The learned Munsiff proceeded to pass the judgment and decree in O.S.No.223/02 decreeing the suit as prayed for. Defendants 1,2 3 and 5 who were present before court did not choose to challenge the decree. The petitioner herein i.e., the 4th defendant who suffered the decree ex parte did not also choose to get the ex parte order set aside or to challenge the ex parte decree.

4. It will be apposite straightaway to take note of the sequence of events which had culminated in the decree in question. The plaintiffs had complained and lamented before the authorities that illegal obstruction was being caused to the plaint ‘B’ schedule property which is allegedly part of a public street. They had initiated proceedings before this Court invoking the writ jurisdiction of this Court. By judgment dated 20/9/93 in C.C.C.No.113/93 and the earlier judgment in W.A.No.364/91 dated 6/6/91 it was held that the plaintiffs could achieve their purpose by filing a suit. It will not be inapposite in this context to straightaway refer to the following passed in para –11 in the judgment dated 20/9/93 in C.C.C.No.113/93.

“It looks to us that the petitioners want to made use of Article 226 and the contempt jurisdiction to achieve their purposes,-- without filing a suit. If they want to claim their right of egress and ingress to the eastern side road, then they have to file a suit, have the huts removed and seek a permanent injunction against respondents 2 to 4 restraining them once again encroaching or putting up huts. That result, it is difficult to achieve in a contempt case. If such as suit is filed respondents 2 to 4 will have the opportunity to put in their defence, if any.”

In para – 12, the Division Bench proceeded to observe as follows:

“But, if they want relief against respondents 2 to 4 for access to the eastern road, they must file a suit, establish their rights and must obtain proper decrees.”

Earlier, in the judgment in W.A.No.364/91, another Division B