2024/KER/11341 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 15^TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 OP(C) NO.2602 OF 2023 AGAINST THE ORDER DATED 16.09.2023 IN E.P.No.1/2022 IN O.S

507/2009 OF MUNSIFF COURT,MUVATTUPUZHA PETITIONER/DECREE HOLDER:

V.U. PAULOSE, AGED 77 YEARS, S/O.ULAHANNAN, VALIYAKATTAYIL HOUSE, MULAKKULAM VADAKKEKKARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIN –

686664.

BY ADVS.

NASEER MOIDU BINOY DAVIS RESPONDENT/JUGGMENT DEBTOR:

1 V.P. MOLLY, AGED 68 YEARS, D/O.PAULOSE, VALIYAKATTAYIL HOUSE, MULAKKULAM VADAKKEKKARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIN –

684446.

2 V.P. THOMSON, AGED 70 YEARS, S/O.PAULOSE, VALIYAKATTAYIL HOUSE, MULAKKULAM, VADAKKEKKARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, PIN –

686664.

BY ADVS.

ESM.KABEER C.SHEEBA(K/273/2012)

JACOB P.ALEX, LEARNED AMICUS CURIAE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON

29.01.2024, THE COURT ON 15.02.2024, DELIVERED THE FOLLOWING:

'CR'

JUDGMENT

Dated, this the 15^th February, 2024 An interesting question as regards the applicability of Order 21, Rule 32(5) arises for consideration in this Original Petition. In the execution of a decree for declaration of title, followed by a prohibitory injunction, whether a Commission can be issued to construct a compound wall, which relief was not, in terms, granted, is the issue involved.

2. Having regard to the seriousness and intricacies of the issue involved, this Court appointed Adv.Jacob P.Alex as Amicus Curiae.

3. Heard Sri.Naseer Moidu, learned counsel for the petitioner; Sri.E.S.M.Kabeer, learned counsel for the respondents and the learned Amicus.

4. Learned counsel for the petitioner would submit that the title of the petitioner over the scheduled property has been declared, followed by a prohibitory injunction restraining the defendants from trespassing into the plaint schedule property, from destroying boundary demarcations therein and also from doing any act interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. Based upon the said decree, the petitioner attempted to put up a compound wall within his boundary, which was obstructed by the respondents herein. In such circumstances, an Execution Petition was filed vide Ext.P5, alleging that the judgment debtors did not allow the decree holder to construct the compound wall on the eastern boundary of the plaint schedule property. Ext.P6 application was also filed to appoint a Commissioner, assisted by a retired survey superintendent, for supervising the construction of the eastern boundary. Ext.P5 Execution Petition and Ext.P6 Commission application, both, were dismissed by Ext.P10 common order, holding that there is no decree for fixation of boundary and that the execution court go beyond the decree. It was also found that the judgment debtor has not made any obstruction. Ext.P10 is under challenge in this Original Petition.

5. Learned counsel for the petitioner would submit that, once the petitioner's title is declared, followed by a decree of prohibitory injunction, interdicting interference with the peaceful possession and enjoyment of plaint schedule property by the defendants/judgment debtors, the decree takes within its sweep the petitioner's right to put up a compound wall. Obstruction, if any, in exercise of such right can surely be remedied under Order 21, Rule 32(5), especially when the explanation thereof makes the provision applicable to prohibitory injunctions. Learned counsel relied upon a judgment of a learned Single Judge of this Court in C.R.P.No.44/2016 dated 15.03.2017 in this regard.

6. Per contra, learned counsel for the respondents would submit that the present Original petition, filed under Article 227 of the Constitution of India, is not maintainable and the petitioner ought to have taken resort to Section 115 of the Code of Civil Procedure. As regards the scope of interference under Article 227, learned counsel relied upon a judgment of H