1. Aggrieved by Ext.P4 order dated 14.07.2022 passed in E.P.No.326/2013 in O.S.No.1890/1990 of the Court of the Principal Munsiff, Ernakulam, the judgment debtors 2, 4, 5 and 6 are before this Court under Article 227 of the Constitution of India. The respondents are the decree holders 2 and 3 in the execution petition.

2. The concise case of the petitioners, relevant for the determination of the original petition, is: the petitioners are judgment debtors in the above execution petition filed by the respondents. By Ext.P1 decree, the Court of the Munsiff, Ernakulam has, inter- alia, restrained the petitioners by a permanent prohibitory injunction from trespassing into the plaint scheduled property. The respondents have filed Ext.P2 execution petition to permit them to construct the boundary walls on the northern and western sides of the decree scheduled property. Prayer (b) in the execution petition is beyond Ext.P1 decree. The petitioners have filed Ext.P3 objection to Ext.P2 execution petition. A Survey Commission was taken out, and on the basis of the commission report and plan, the Execution Court, by the impugned Ext.P4 order, has permitted the respondents to construct boundaries on the northern and western sides of the decree scheduled property at their expense. Ext.P4 is unjust, illegal and arbitrary and warrants interference by this Court. Hence, the original petition.

3. The second respondent has filed a counter affidavit refuting the allegations in the original petition. It is, inter alia, contended that the execution petition is filed based on the observations made by a Division Bench of this Court in Ext.R2 (a) judgment. The judgment debtors have destroyed the granite wall constructed by the respondents. The petitioners have suppressed material facts in the original petition. The learned Munsiff has only complied with the directions of this Court in Ext.R2(a) judgment. The judgment debtors had filed a review petition before the court below, which is not been stated in the original petition. The Police have registered a crime against the fourth petitioner for demolishing the granite wall. The original petition may be dismissed.

4. Heard; Sri. K.R.Vinod, the learned counsel appearing for the petitioners and Sri. P.B. Krishnan, the learned counsel appearing for the respondents.

5. Sri.K.R.Vinod contended that Ext.P4 order passed by the court below is beyond the scope of Ext.P1 decree. He relied on the decisions of the Hon’ble Supreme Court in Brakewel Automotive Components (India) Pvt. Ltd. v. P.R. Selvam [2017 KHC 6211], Meenakshi Saxena and Anr. v. ECGC Ltd. and Anr.[2018 KHC 6450] and the decision of this Court in Shajudhi v. Sabinsa Begum and Others [2017 KHC 689] to buttress his contention that the Execution Court cannot go beyond the decree. Ext.P4 order is erroneous and unsustainable in law. Hence, the original petition may be allowed.

6. Sri.P.B.Krishnan countered the above submissions by contending that the litigation between the parties has a long history. There were three suits between the parties, i.e., (i) O.S.No.1890/1990, (ii) O.S.No.1932/1990 and (iii) O.S.No.1965/1990. The suits were consolidated and jointly tried. The first suit filed by the respondents was decreed against the petitioners, restraining them from trespassing into the plaint scheduled property. The second suit filed by the petitioners was partly decreed against the respondents, restraining them from altering the present lie and location of plaint ‘A’ scheduled property. The third suit filed by the petitioners for a decree of permanent prohibitory injunction was dismissed. Even though the appeals were filed against the common judgment and decree, the same were dismissed. Thereafter, the petitioners trespassed into the respondents’ property and cut a pathway as discernible from Exts.C9 and C9(a) reports filed by the Advocate Commissioner. It was in the above circumstances, invoking the power under Order 21 Rule 32 (5) of the Code of Civil Procedure,1908 (in short,‘C.P.C.’) the court below permitted the construction of the boundaries on the northern and western portions of the decree scheduled property under the supervision of the Amin and Surveyor and in the presence of an Advocate Commissioner. He relied on the decision of the Hon’ble Supreme Court in Jai Dayal and Others v. Krishan Lal Garg and Anr. [(1996) 11 SCC 588] [LQ/SC/1996/1906] and the decisions of this Court in Baby v. Deputy Superintendent of Police [2019(4) KHC 660], Ajayakumar v. Damayanthi [2004 KHC 541], Gopinath Pillai V v. Rajappan and Ors.[20011(2) KHC 508] and Printing & Publishing Co- operative Society Ltd. v. Santhosh and Anr. [2018(1) KHC 848], to support his contentions and the impugned order. He urged the original petition to be dismissed.

7. The question is whether there is any illegality in Ext.P4 order.

8. Ext.P1 decree passed by the court below reads as follows:

“For the reasons stated in the judgment the suit is decreed granting permanent prohibitory injunction restraining the defendants and their henchmen from committing any acts of trespass upon the plain schedule property or upon any portion thereof from taking forcible possession of the same or from doing any acts which would injurious by affect the plaintiffs peaceful possession and enjoyment of the plaint schedule property. Considering the circumstances of the case and the relationship between the parties there is no order as to costs.”

9. The decree unambiguously demarcates the scheduled property.

10. The original decree-holder laid the decree to execution through Ext.P2 execution petition, seeking the following reliefs:

“12. Mode in which the assistance of the court is required.

It is respectfully prayed that this court be pleased to allow the decree holder to execute the decree in the above case.

a) issuing notice to the J.Ds to show cause under O.21 R.32 CPC.

b) Allowing the petitioner to construct boundaries on the Northern and Western sides of the decree scheduled property at his own expense under the supervision of an officer of this court.

c) By arrest and detention of the respondents in civil prison and by attachment of their properties, schedules of which will be filed in due course.

d) By such other modes as may be deemed fit and proper in the interest of justice.”

11. The fourth petitioner filed Ext.P3 objection to the execution petition, inter alia, stating that they had no intention to interfere with the peaceful possession of the decree-holders over the decree scheduled property and the attempt of the respondents was to persuade the court to travel beyond the decree and get the boundaries on the northern and western side constructed.

12. The court below deputed the same Advocate Commissioner appointed on the original side, who inspected the property and filed Exts.C7, C7(a), C7(b) series, C8 and C8(a) and C9 and C9(a).

13. On noticing a newly formed road having an extent of 3.5 metres width through the decree schedule property reported in C9 and C9 (a) and the petitioners have a pathway in Survey No.1590/3, and they are restrained from trespassing into the decree scheduled property situated in Sy.No.1588, the court below passed the impugned Ext.P4 order, ordering as follows:

“In the result, the petition is allowed to the extent that the additional decree holders are allowed to construct boundaries on the northern and western sides of the decree schedule property at their own expenses as per Exts.C4, C4(a) to Exts.C6, C6(a) and Exts.C8, C8(a) and C9, C9(a) under the supervision of Amin and Surveyor, and if required, in the presence of Advocate Vimal Raj who is the Advocate Commissioner appointed in this case.”

14. It is well settled in a plethora of precedents that an Execution Court can neither travel beyond the decree nor sit in appeal over the same or pass any orders jeopardising the right of the parties thereunder. [Read Brakewel Automotive Components (India) Pvt. Ltd. and Meenakshi Saxena (supra)].

15. The trump card of the respondents is that a Division Bench of this Court in Ext.R2 (a) judgment had permitted the respondents to approach the execution court and seek assistance for the construction of the compound wall for the protection of the property, which has led the respondents to file the execution petition.

16. This Court, in Ext.R2(a) judgment, observed as follows:

6. Since the matter is in the nature of a civil dispute and since it will fall within the realm of execution of a decree, it may not be proper and justified for this court to direct police protection. Under such circumstances, the person aggrieved should take recourse to remedy available under common law and invoking jurisdiction of this court under Article 226 cannot be permitted. Hence, we make it clear that the petitioner will be at liberty to seek appropriate relief through execution of the decree. We also make it clear that if any execution petition is filed, it will be left open to the execution court to order measurement/re-measurement of the property if required, by deputing an Advocate Commissioner assisted by a competent surveyor, if necessary with police assistance, to fix the alignment of the compound wall to be constructed.

7. With respect to the question regarding protection to the life of the petitioner, we record the statement made on behalf of the respondents 5 to 9 that they have no intention to cause any threat or intimidation either to the petitioner or to any of his family members. Learned Government Pleader appearing for respondents 1 to 4 submitted that the police officers will take necessary steps if any intimation regarding any threat to life if reported.

8. Under the above mentioned circumstances, we dispose of the Writ Petition directing respondents 2 and 3 to take effective steps if any intimation is received with respect to any threat or intimidation to the lives of the petitioner or his family members, to afford protection. They should also ensure law and order situation and avert any breach of peace, emerging out of the dispute between the petitioner and the contesting respondents with respect to the property in question.”

[emphasis supplied]

17. A careful reading of the Ext.R2 (a) inter-party judgment clearly reveals that the Division Bench of this Court had specifically relegated the respondents to approach the civil court for execution of the decree and had not permitted the construction of the boundaries.

18. It is also pertinent to note that Ext.R2 (a) judgment is not marked or referred to in the Ext.P4 order. Therefore, the respondent’s contention that they filed the execution petition and the impugned order was passed by the court below on the strength of the observations in the judgment passed by this Court, cannot be accepted for a moment.

19. Now, Ext.P1 decree restrains the petitioners from committing any act, trespassing upon the plaint scheduled property, taking forcible possession or doing any acts which would be injurious to the respondents’ peaceful possession and enjoyment of plaint scheduled property.

20. The decree does not provide for the construction of the boundaries as sought in prayer (b) of Ext.P2 execution petition. The other two prayer are (a) issue notice to the judgment debtors under Order 21 Rule 32 CPC, which was already done, and (c) the arrest and detention of the judgment debtors in civil prison and attachment of their properties.

21. In the light of the law laid down by the Hon’ble Supreme Court in the above referred decisions, the reliefs granted in Ext.P1 decree and the observations made by this Court in Ext.R2 (a) judgment, prayer (b) in the execution petition is unsustainable in law.

22. The court below, presumably, invoking the provisions under Order 21 Rule 32 (5) CPC, has permitted the construction of the boundaries under the supervision of the Amin and Surveyor and in the presence of an Advocate Commissioner.

23. It is profitable to extract Order 21 Rule 32 CPC, which reads as follows:

“32. Decree for specific performance for restitution of conjugal rights, or for an injunction.— (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced [in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for [six months,] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decreeholder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of 2 [six months] from the date of the attachment no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

[emphasis supplied]

24. An analysis of sub-rules (1) and (5) of Rule

32 mandates that only if the judgment debtor willfully fails to obey the decree, the court can detain him in civil prison or require any act to be done by him.

25. In the case on hand, admittedly, no evidence has been let in by either side, except for the commission reports that are placed on record. The reports are only corroborative in nature and have not been proved. The court below on finding a pathway marked as ‘C’ in Exts.P9 and P9 (a) perfunctorily passed the impugned order. There is no whisper in the order at whose instance the pathway was cut or constructed, or whether the petitioners have flouted the decree passed against them. Merely on seeing the pathway in the commission reports, the court below could not have straight away invoked Order 21 Rule 32(5) CPC, that too without giving the petitioners an opportunity to explain their side and without rendering a finding that there was wilful disobedience of the decree by the petitioners. Therefore, it was too premature for the court below to pass the impugned order.

26. In the above factual and legal matrix, I find Ext.P4 order is vitiated by material irregularity and impropriety and warrants interference by this Court under Article 227 of the Constitution of India, as the order has been passed without following the due procedure established by law. Hence, Ext.P4 is liable to be set aside.

27. Nonetheless, I may hasten to observe that Ext.P1 decree has attained finality in favour of the respondents. The petitioners have, in unequivocal terms in Ext.P3 objection, admitted that they have no intention to trespass into the decree schedule property or interfere with the respondents’ peaceful possession of their property. Consequently, the respondents would be at liberty to construct the boundaries of the decree schedule property within the framework of Ext.P1 decree by using their machinery and not under the supervision of the court. If the petitioners cause any hindrance or obstruction to such construction, it would be up to the respondents to seek recourse to the remedies available to them under law.

Resultantly, I dispose of the original petition in the following manner:

(i) Ext.P4 order is set aside;

(ii) The court below is directed to permit the parties to let in evidence and decide the execution petition in accordance with law and as per the observation made above

(iii) As the execution petition is of the year 2013, the court below is directed to dispose of the same as expeditiously as possible, and

(iv) The parties shall bear their respective costs.