IMPORTANT POINT
The Execution Court has broad powers under Order XXI Rule 32 to enforce decrees, including mandatory injunctions, and objections regarding executability are unfounded.

JUDGMENT :

K. BABU, J.

The judgment debtors in an Execution Petition challenge the order of the Execution Court directing restoration of the property to its original position in this proceedings. Petitioner Nos.1 to 3 are additional judgment debtor Nos. 2, 4 and 5. Respondent No.1 is the decree-holder. Additional judgment debtor No.3 is respondent No.2.

2. The decree holder/plaintiff instituted O.S No.512/1990 before the Munsiff's Court, seeking a permanent prohibitory injunction and mandatory injunction against the defendants. The Trial Court dismissed the suit. The decree holder/plaintiff challenged the decree of the Trial Court filing A.S No.91/2003 before the Subordinate Judge's Court, Cherthala. The First Appellate Court reversed the judgment and decree passed by the Trial Court and decreed the suit granting a permanent prohibitory injunction and mandatory injunction in favour of the decree-holder/plaintiff. The defendants challenged the decree of the First Appellate Court in RSA No.839/2013, which ended in dismissal. The decree became final. The decree-holder executed the decree granting a mandatory injunction in E.P No.68/2012.

2.1. The decree-holder on 21.03.2017 filed E.P No.38/2017 alleging that on 25.02.2017, defendant No.2 trespassed upon the plaint schedule property and erected a shed, and dumped waste in the property. It is also alleged that the fencing on the boundary was also destroyed. The original judgment debtor (defendant No.2) filed a petition under Section 47 of the CPC challenging the executability of the decree. He contended that the decree is not executable as it is time-barred. He further contends that the relief of fixation of boundary prayed for in the Execution Petition is not maintainable.

2.2. On 07.03.2021, the original judgment debtor/defendant No.2 died. On the application of the decree-holder, additional judgment debtor Nos.2 to 5 were impleaded as per order in E.A No.69/2021 dated 23.05.2022. They entered appearance. Additional judgment debtor No.5 filed a separate objection to the decree. She also contended that the relief of mandatory injunction is barred by limitation, and there is no decree for fixation of boundary and therefore, the decree is not executable.

2.3. The Execution Court on 03.08.2022 allowed the Execution Petition repelling the contentions raised by the judgment debtors and appointed an Advocate Commissioner and Surveyor to supervise the act of restoration of the plaint schedule property to its original position by the Amin.

3. The learned counsel for the petitioners made the following submissions:

(i) The relief granting the decree-holder to construct the boundary on ABC and AG lines with the assistance of the Amin and the Commissioner amounts to executing a decree for fixation of boundary, which the First Appellate Court had not granted.

(ii) The order in Execution Application No.298/2019 is an order against a dead person; therefore, it has no validity in the eye of law.

(iii) The objections filed by the additional judgment debtor No.5 were not considered by the Execution Court.

4. The learned counsel for respondent No.1 made the following submissions:

(a) The Execution Court is empowered to pass orders for enforcing a decree in a manner that would give effect to it.

(b) The Execution Court has considered the objections raised by the additional judgment debtor No.5. The relief granted in the Execution Petition is not a relief consequent to the dismissal of E.A No.298/2019.

5. The decree granted in favour of the decree-holder/plaintiff is as follows:

“The second defendant, his men and agents are restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property or to do any acts detrimental to the interest of the plaintiff. The second defendant is directed to dismantle and remove the latrine and other structures put up by him in the plaint schedule property within one month from the date of this judgment at his expense failing which the plaintiff is permi