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2025 Supreme(Online)(Ker) 37765
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. NATARAJAN, J
GEORGE JOHN – Appellant
Versus
THOMAS MATHEW – Respondent
CRP NO. 379 OF 2022
For the Appellants/Petitioners: SRI.MANU RAMACHANDRAN, SRI.M.KIRANLAL, SRI.R.RAJESH (VARKALA), SHRI.SAMEER M NAIR, SMT.DHANALAKSHMI V.K., SHRI.GEETHU KRISHNAN, SMT.SAILAKSHMI MENON
For the Respondents: SHRI.K.R.PRATHISH, SRI.BOBY THOMAS, SRI.RENJITH B.MARAR, SMT.LAKSHMI.N.KAIMAL, SHRI.ARUN POOMULLI, SMT.PREETHA S CHANDRAN, SHRI.ABHIJITH SREEKUMAR
The court must enforce decrees by restoring rights and access, addressing obstructions appropriately.
Headnote:(A) Civil Procedure Code - Execution of Decree - Rights over pathway - Plaintiff's right was partially upheld while the judgment debtors were found to be interfering, requiring enforcement of the decree. The execution court's dismissal was ruled erroneous. (Para 1)
(B) Property Law - Restoration of Rights - The court affirmed the obligation of the court to maintain the decree's effectiveness by restoring the plaintiff’s right of access and directing further investigation on obstruction (Para 10).
Facts of the case:
The petitioner sought a mandatory injunction and declared right of use of a pathway which was blocked by the judgment debtors, leading to this execution petition after unsuccessful earlier remedies.
Findings of Court:
The execution court's dismissal was deemed incorrect as it misapplied the evidence regarding obstruction, warranting judicial correction and further assessment to restore access to the pathway.
Issues: The main issues revolved around the obstruction of the pathway and the consequent enforcement of judgment. The execution of decrees and their obligatory nature were at the forefront of the deliberation.
Ratio Decidendi: The court established that once a decree obtains finality, the law demands enforcement, and any obstruction against its execution must prompt remedial measures from the court, necessitating a re-evaluation of the circumstances by appointing a commissioner for further verification. (Para 11)
Result: The petition is allowed, and the order of the execution court dismissing the petition is set aside.
O R D E R
(Dated: 19th June, 2025)
This revision petition is filed by the petitioner/decree holder as against the order passed by the Munsiff Court, Pathanamthitta, in E.P.No.113 of 2011 in O.S.No.504 of
1996.
2. Counsel for the 3rd respondent remained absent.
3. The case of the petitioner is that the petitioner filed a suit before the Trial Court as O.S.No.504 of 1996 against the defendants for restricting the petitioner's use of the pathway, item No.2 in the schedule, and also mandatory injunction. The suit was recently dismissed and the 1st Appellate Court in A.S.No.119 of 2022 of Addl. District Court (Adhoc-II), Pathanamthitta, decreed the suit in part, contending that the plaintiff has the right over the adjacent pathway shown in Ext.C1(b) along the judgment debtor (in the judgment dated 31.07.2002). Subsequently, the petitioner filed E.P. before the Munsiff Court, alleging that the judgment debtors are obstructing the way and constructing a wall in the scheduled item No.2 property, therefore, there is violation of the court orders and prayed for sending the violators to the civil prison and to restore the item No.2 way to the petitioner for ingress and egress.
4. The respondents/judgment debtors appeared and objected to the petition. A commissioner was appointed before the trial court, the decree holder examined, and 3 witnesses were examined as PWs 1 to 3. The commissioner was examined as PW3. The 2nd judgment debtor was examined as DW1. After hearing the arguments, the execution court dismissed the petition. Hence, this revision petition came to be filed.
5. The counsel for the petitioner contended that the commission report reveals that there is debris found in the demolished wall constructed on the pathway/scheduled item No.2. There is a clear case of obstruction by judgment debtors 2 and 3. Judgment debtors 2 and 3 in the address, they have taken notice and there is no objection for them for using the item No.2 by the decree holder, accepting the case, the execution court restored the pathway by executing the decree, dismissing the petition is not correct. It is also contended by the learned counsel that there is a clear obstruction by the 2nd and 3rd judgment debtor. The first judgment debtor is already dead; he has not obstructed. 6. The categorical case of the petitioner /decree holder is that judgment debtors 2 and 3 were obstructing and putting up the construction of the wall, and at the time of filing the E.P. petition, they are demolishing the wall to avoid the punishment. It is clear from the commissioner's report that the order under challenge is belated and therefore calls for the interference of this court.
7. Learned counsel appearing for the 2nd judgment debtor, though seriously objected to the decree, but it is contended that there is no proper measurement made in the sketch produced by the commissioner, which was relied by the 1st Appellate Court, while decreeing the suit, it is not clear for the purpose of executing the decree, therefore directed to be considered by the trial court. The 2nd and 3rd defendants have not obstructed the pathway. It is the 1st Judgment debtor who could have obstructed the way, who is no more, and there is no legal heir brought on record after the death of the 1st judgment debtor.
8. Heard the counsel on both sides and pursued the records.
9. On going through the records, it is evident that the suit was dismissed by the trial court, which was partly allowed by the 1st appellate court/decreed the suit of the plaintiff, and restored the pathway based upon the commission report Ext.C1(b), which is not disputed. The case of the petitioner is that, subsequently, the defendants/judgment debtors are obstructing the way; they have put up a compound wall and dumping the debris, and restricting the plaintiff from using the pathway/ scheduled item No.2 in the decree. Therefore, they have been forced to file E.P., for executing the decree. At the time of examination, PW3/ the commissioner, t
