Justice should prevail despite technicalities, and subsequent trespass after the delivery of property can warrant further action through an execution petition.

The petitioner filed O.S. No.8 of 1992 before the Subordinate Judge's Court, Sultan Bathery, for recovery of possession and prohibitory injunction against trespass. The suit was decreed as per Ext.P1 judgment dated 29.02.2000. The judgment and decree were challenged by the defendant before the Additional District Court, Kalpetta in A.S. No.8 of 2000 which was dismissed. Challenging the said judgment, Second Appeal was filed before this Court as RSA No.200 of 2005 which came to be dismissed as per judgment dated 24.07.2012. Though the defendants approached the Apex Court, they were not successful. Thereafter, in E.P 100 of 2003, the decree was executed and the property with the building thereon bearing No.352 in Ward No.VII of Vythiri Panchayat was delivered over to the decree holder on 11.02.2013. The delivery is evidenced by Ext.P3 delivery kaichit.

2. Alleging that after the delivery, on 11.03.2013, the respondents/judgment debtors again trespassed into the building situated in the plaint schedule property, the decree holder filed E.P. No.29 of 2013 and E.A. No.94 of 2013. The prayer in the execution petition was for arrest of the respondents for violation of the decree and judgment, and also for damages. In E.A. No.94 of 2013 the prayer sought for was to cause arrest and removal of the respondents from the building situated in the plaint schedule property. Though time was granted to the defendants to file objection, no objection was filed and they were set ex parte. However, the court below as per the impugned order dismissed the E.A. holding that the decree in O.S. No.8 of 1992 was executed and delivery was effected, that subsequent trespass if any into the decree schedule property in O.S. No.8 of 1992 would not confer any right on the decree holder to further execute the decree which has already been satisfied. The order dated 10.04.2013 dismissing E.A. No.94 of 2013 was challenged by the petitioner/decree holder before the District Court, Wayanad in A.S. No.12 of 2013. As per judgment dated 12.06.2013 (Ext.P8), the appeal was dismissed confirming the order passed by the court below and further observing that the order impugned therein is not appealable under Order XLI, Rule 1 of the Code of Civil Procedure. It is thereupon that the present Original Petition is preferred by the petitioner/decree holder in O.S. No.8 of 1992. The facts as above, are not in dispute.

3. Learned counsel for the respondents/defendants would contend that the decree for recovery of possession was already executed and the decree was satisfied. The second execution petition could not be maintained alleging subsequent trespass by the respondents. It is contended that the subsequent trespass only gives rise to a fresh cause of action, enabling the petitioner/plaintiff to file a fresh suit if he so chooses. It is further contended that though in the suit O.S. No.8 of 1992 a decree for prohibitory injunction against trespass was also sought for, as seen from the decretal portion of the judgment, there is no decree for prohibitory injunction. According to the learned counsel, execution petition has been filed by the petitioner on the assumption that there is a decree for prohibitory injunction and that the same has been violated by the respondents/defendants. It is accordingly that in the execution petition, the petitioner has prayed for detention of the respondents in civil prison for violation of the decree.

4. As per Ext.P1 judgment, the suit was decreed. In the suit, there was a specific prayer for prohibitory injunction against trespass. Issue No.7 raised in the suit was as to whether the plaintiff is entitled for the relief of injunction. The issue was concluded in favour of the petitioner and it was held as follows:

"defendants have no right to trespass upon the plaint schedule property. So, the injunction prayed for is allowable."

However, in the decretal portion of the judgment, the relief of injunction was omitted to be stated. The decret