C.R.P(NPD)(MD).No.2388 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on

: 06.04.2023

Pronounced on

: 28.06.2023

CORAM:

THE HONOURABLE MR.JUSTICE P.VADAMALAI

C.R.P(NPD)(MD).No.2388 of 2017

and

C.M.P(MD)No.11395 of 2017

1.P.Devadasan

2.P.Muthunayagam (Addl.6)

... Revision Petitioners/

defendants

Vs.

1.N.Kunjuraman Nair

2.Kurusumuthu

... Respondents/

Plaintiffs

PRAYER : Civil Revision Petition filed under Section 115 of Civil

Procedure Code, to set aside the fair order dated 16.11.2017 made in

E.P.No.11 of 2016 in O.S.No.42 of 2004 on the file of the Principal

District Munsif, Padmanabhapuram and allow the above Civil Revision

Petition.

For Petitioners

: Mr.P.Thiyagarajan

For Respondents : Mr.V.Shathurthi Raja

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C.R.P(NPD)(MD).No.2388 of 2017

ORDER

This Civil Revision Petition is filed against the order dated

16.11.2017 passed in E.P.No.11 of 2016 in O.S.No.42 of 2004 on the file

of the Principal District Munsif Court, Padmanabhapuram.

2. The brief facts of the case:

The revision petitioners are the defendants in O.S.No.42 of 2004

on the file of the Principal District Munsif Court, Padmanabhapuram.

The respondents as plaintiffs filed the said suit against the

petitioners/defendants for declaration of their title and possession over

plaint A.Schedule property and for permanent injunction restraining them

from entering into A.Schedule property and also for mandatory

injunction to restore the B.Schedule property to its original position and

for damages. The suit was decreed in favour of the respondent. However,

in the Second Appeal the Hon’ble High Court confirmed the decree of

declaration and permanent injunction and dismissed the suit in respect of

mandatory injunction and damages in respect of B.Schedule property.

The petitioner put fencing net to protect the rubber saplings planted in

his property. On 11.10.2015 the petitioners along with rowdy elements

trespassed into the schedule property in violation and disobedience to the

decree of permanent injunction and damaged fencing measuring 500 feet

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C.R.P(NPD)(MD).No.2388 of 2017

and 15 feet width worth Rs.25,000/-. The respondent preferred a

criminal complaint. The petitioners’ act is against the decree of

prohibitory, which amounts to contempt of court. Therefore, the

respondent filed the petition in E.P.No.11 of 2016 in O.S.No.42 of 2004

to detain the petitioners/defendants in civil prison. The petitioners filed

their counter objecting the averments of the respondent. After hearing

both, the Executing Court has allowed the petition in E.P.No.11 of 2016

in O.S.No.42 of 2004 on 16.11.2017. Aggrieved by the order of the

Executing Court, the petitioners moved this Court by way of this Civil

Revision Petition.

3. Heard both side and perused the records in this Civil Revision

Petition.

4. The learned counsel appearing for the petitioners has argued that

the respondents filed the suit for declaration, permanent injunction in

respect of A.Schedule suit property and for mandatory injunction and

damage in respect of B.Schedule property. Though the suit was decreed

in favour of the respondents, in Second Appeal the Hon’ble High Court

partly decreed the suit and the suit was dismissed in respect of

B.Schedule property. The B.Schedule property is a public pathway. The

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C.R.P(NPD)(MD).No.2388 of 2017

respondents have not established that they formed pathway in the

A.Schedule property. The petitioners produced the proceedings of the

revenue officials about the formation of disputed pathway. The

petitioners have not committed any of the acts alleged by the respondent.

The petitioners have not violated the order of the court. The B.Schedule

property is common pathway and there is no decree against the said

proper