Willful disobedience of a decree for permanent injunction warrants enforcement measures, while lack of evidence of disobedience leads to dismissal of the petition against other respondents.

1. The revision petitioner/decree holder has filed this revision petition against the order dated 06.08.2009 made in E.P.No.36 of 2008 on the file of the Subordiante Court, Rasipuram.

2. The revision petitioner/plaintiff has filed a suit in O.S.No.312 of 2005 and sought for the relief of declaration and permanent injunction. The trial Court has passed a decree and judgment dated 02.08.2007 in which, rejected the prayer for declaration, but granted the relief of permanent injunction as against all the respondents/defendants. All the respondents/defendants in the above said suit have not preferred any appeal against the judgment and decree passed by the trial Court.

3. The revision petitioner/plaintiff has filed an execution petition in R.E.P.No.36 of 2008 under Order 21, Rule 32 CPC in which, it is stated that the respondents 1 to 4 in the above said execution petition/defendants 1 to 4 have violated the above said decree and judgment and they trespassed into the property and still they are in possession and therefore, prayed for to send civil prison by issuing warrant.

4. The second respondent herein/second defendant has filed a separate counter. The fourth respondent/third defendant has filed a counter and the other respondents/Defendants 1 and 4 adopted the counter of the fourth respondent/third defendant.

5. In the counter, it is clearly admitted that the second respondent/second defendant residing the suit property after her father's death but the other respondents/Defendants 1, 3 and 4 are residing other places, not residing in the suit property.

6. Before the Executing Court, on the side of the revision petitioner/plaintiff, two witnesses were examined as PW1 and PW2. On the side of the respondents/defendants, two witnesses were examined as RW1 and RW2 and marked three documents as Exs.R1 to R3. On the side of the Court, one document was marked as Ex.C1 as Court document and also one document was marked through witness as witness document.

7. The Executing Court has considered the above said oral and documentary evidence and finally, held that from the pleadings in the counter and also from the evidence of RW1 itself, it is proved that the second respondent/second defendant is living in the suit property, inspite of permanent injunction was granted in favour of the revision petitioner/plaintiff. But, the Executing Court has dismissing the execution petition on the ground that the second respondent/second defendant has not willfully disobeyed the decree passed against her and the other respondents 1, 3 and 4 also have not violated the permanent injunction granted against them. Aggrieved over the dismissal order passed by the Executing Court, the revision petitioner/plaintiff has preferred this revision petition.

8. Learned counsel appearing for the revision petitioner/plaintiff submitted that the trial Court has granted permanent injunction against all the respondents herein/Defendants 1 to 4, but as against the relief of permanent injunction granted by the trial Court, all the respondents/Defendants 1 to 4 have trespassed into the suit property and all the respondents/Defendants 1 to 4 are disobeyed the order of the trial Court and therefore, prayed for to send to civil prison.

9. The leaned counsel appearing for the respondents/Defendants submitted that the second respondent/second defendant is living in the suit property, after her father's death and the roof was damaged and therefore, by using plastic cover in the roof and she is living in the suit property and therefore, it is not willful violation of the decree. The learned counsel further submitted that the revision petitioner/plaintiff is not in possession of the suit property and therefore, there is no question for restraining the revision petitioner/plaintiff by the respondents/Defendants. Further, the learned counsel appearing for the respondents/defendants 1 to 4 submitted that the first respondent/first defendant is residing at Samayapuram, the third