1 OPC 2706/24 2025:KER:27134 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947 OP(C) NO. 2706 OF 2024 OS NO.191 OF 2007 OF MUNSIFF COURT, KARUNAGAPPALLY PETITIONER/S: 1 SANTHOSH, AGED 46 YEARS S/O GABRIEL THUNDAYYATHU HOUSE, ARINALLOOR, THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 2 DAISY RAJAN, AGED 41 YEARS W/O SANTHOSH, THUNDAYYATHU HOUSE, ARINALLOOR, THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 BY ADVS. HARISH GOPINATH SURUMI NAZAR RESPONDENT/S: 1 STANCY EDWARD, AGED 80 YEARS W/O LATE PATHROSE EDWARD, EDWARD BHAVAN, ARINALLOOR PO THEVALAKKARA. KARUNAGAPPALLY, KOLLAM, PIN - 695018 2 FR.AJAY KUMAR, AGED 53 YEARS S/O LATE PATHROSE EDWARD, EDWARD BHAVAN, ARINALLOOR PO THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 3 ANIL KUMAR, AGED 50 YEARS S/O LATE PATHROSE EDWARD EDWARD BHAVAN, ARINALLOOR PO THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 4 ANNIE MARY AGED 37 YEARS D/O LATE PATHROSE EDWARD EDWARD BHAVAN, ARINALLOOR PO, THEVALAKKARA. KARUNAGAPPALLY, KOLLAM, PIN - 695018 5 CLETUS (DELETED) AGED 51 YEARS S/O FRANCIS, KANICHERIL, ARINALLOOR, SOUTH, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM, PIN - 695018 2 OPC 2706/24 2025:KER:27134 6 SEBASTIAN(DELETED)) AGED 51 YEARS S/O. FRANCIS, KANICHENL, ARINALLOOR SOUTH, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM, PIN - 695018 7 JOLLY(DELETED) W/O SEBASTIAN, KANICHERIL, ARINALLOOR SOUTH, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM, PIN - 695018 8 JOSEPH CARLOS(DELETED) AGED 45 YEARS S/O CARLOS, LIJO BHAVANAM, ARINALLNOR MART, ARINALLOOR PO, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM, PIN - 695018 9 LEELA(DELETED) AGED 40 YEARS W/O JOSEPH CARLOS, LIJO BHAVANAM, ARINALLOOR MART, ARINALLOOR PO, THEVALAKKARA, KARUNAGAPPALLY, KOLLAM, PIN - 695018 10 SNEHAMMA FRANKLIN@ MERCY(DELETED) AGED 60 YEARS W/O FRANKLIN, AIKKARAVILA THEKKATHIL, ARINALLOOR SOUTH P O, THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 11 RAJAN(DELETED) S/O BELTHAZER, OTTAPLAVIL, ARINALLOOR SOUTH, ARINALLOOR.P O THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 12 LUCY(DELETED) W/O RAJAN, S/O BELTHAZER, OTTAPLAVIL, ARINALLOOR SOUTH ARINALLOOR.P O THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 13 SEEJA(DELETED) AGED 35 YEARS W/O. YESUDASAN (NIKHIL) AIKKARAVILA THEKKATHIL ARINALLOOR SOUTH. ARINALLOOR PO THEVALAKKARA. KARUNAGAPPALLY, KOLLAM, PIN - 695018 14 EARNEST(DELETED) S/O ANTONY, JIJO BHAVAN ,ARINALLOOR.P O THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 15 SOOSAMMA(DELETED) AGED 42 YEARS W/O EARNEST ANTONY, JIJO BHAVAN, ARINALLOOR.P O THEVALAKKARA KARUNAGAPALLY, KOLLAM 695018, PIN - 695018 3 OPC 2706/24 2025:KER:27134 16 JIJO (DELETED) S/O EARNEST , ANTONY JIJO BHAVAN ,ARINALLOOR.P O THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 17 LATHA @ PUSHPALATHA(DELETED) AGED 51 YEARS W/O JAMES ANTONY, VELUTHEDATHUVILAVIL, ARINALLOOR MURI, ARINALLOOR. PO, THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 18 ALOYSIUS(DELETED) S/O KUTTIYIL PADINJATTATHIL ARINALLOOR MURI ARINALLOOR.P O THEVALAKKARA KARUNAGAPPALLY, KOLLAM, PIN - 695018 19 JIJIMOL(DELETED), AGED 47 YEARS D/O. LAWRENCE, ANIKKUZHIYIL, ARINALLOOR MURI, ARINALLOOR P.O THEVALAKKARA, KARUNAGAPPALLY, KOLLAM, PIN - 695018 20 JASSY(DELETED) W/O MILQUARE THOMAS OTTAPLAVILA, ARINALLOOR MURI, ARINALLOOR P.O , THEVALAKKARA, KARUNAGAPALLY, KOLLAM - 695018 (RESPONDENTS 5 TO 20 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 06/12/2024 IN I.A NO. 1/2024), PIN - 695018 BY ADVS. SURESH KUMAR KODOTH K.P.ANTONY BINU(K/103/2014) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 4 OPC 2706/24 2025:KER:27134 JUDGMENT (Dated this the 26th day of March 2025) This O.P.(C) is filed by the judgment debtors 2 and 3 in E.P.No.150 of 2011 in O.S.No.191 of 2007 on the files of Munsiff Court, Karunagappally. Respondents Nos.1 to 4 were the decree holders in the suit. The suit was filed by respondent Nos.1 to 4 for a permanent prohibitory injunction. 2. The 1st defendant passed away, and defendants Nos.2 and 3 contested the suit. Defendants filed a written statement contending that the 1st defendant and his wife jointly owned the property as per Deed No.3962/1956, they are residing and using the pathway through the property of the plaintiffs, and they were not obstructed by the plaintiffs’ predecessor, at any point of time. The defendants claimed that the counterclaim 'C' schedule pathway is the only way to access their property and is also used by many other persons residing further east of the properties of 5 OPC 2706/24 2025:KER:27134 the plaintiffs and defendants. The trial court decreed the suit, and the plaintiffs’ exclusive possession and enjoyment of plaint schedule property was declared. The defendants were directed to reinstall the western fencing of the plaint schedule property in its original position by reconstructing the same, which had been removed at the spot at a distance of 6 ft. towards the south from the northwestern corner of the plaint schedule property. 3. The decree holders filed E.P. No.150 of 2011 to appoint an Advocate commissioner to execute the decree of mandatory injunction to reinstall the western fencing removed by the defendants to recover the cost and to detain the judgment debtors in civil prison. The decree holders also filed an application to implead the relatives/neighbours of judgment debtors on the allegation that they violated the prohibitory injunction. The said I.A. is numbered as E.A.No.107 of 2011. E.A.No.108 of 2021 6 OPC 2706/24 2025:KER:27134 was filed to amend the execution application to incorporate a prayer to execute the decree of a permanent prohibitory injunction by detaining judgment debtors in civil prison, attaching their properties, and closing the newly constructed pathway, and by installing western fencing. The execution court allowed the impleading as well as the amendment application. Thereafter, the petitioners entered appearance and filed a detailed objection pointing out that they were not made parties to the suit and had not committed any disobedience of the decree. 4. In the execution proceedings, the petitioners herein did not participate, and they were set ex-parte and Ext.P9 was passed, which is the same produced as Ext.P14 in O.P.(C) No.1620 of 2024. The execution court, after elaborately considering the evidence adduced on the part of the decree holders and on the side of the additional judgment debtors, came 7 OPC 2706/24 2025:KER:27134 to a firm conclusion that the judgment debtors, as well as additional judgment debtors, have willfully and intentionally violated the decree. 5. PW Nos.1 to PW5 were examined on the side of the decree holders, and the 5th additional judgment debtor was examined as DW1. PW1, in his examination and cross- examination, maintained the stand that the judgment debtors and additional judgment debtors trespassed into plaint schedule property on 6.10.2016 and on 5.10.2016, after the Commissioner and Amin executed the decree, violated the decree and cut and removed trees and a crime was registered on 17.10.2016. PW4 supported the version of PW1. 6. PW2, the Commissioner, was examined. He reported that on 5.10.2016 when he visited the property, a new pathway was made, 40 meters in length and 80 cm in width, while on his 8 OPC 2706/24 2025:KER:27134 previous visit, there was no such way. He also deposed that, as per the Ext.C1 report, there was a fence on the western boundary, and now it is completely destroyed. 7. PW3 and PW5 were examined regarding the registration of the F.I.R. by Chavara Police Station. They deposed that they had registered Annex.A1 FIR and A2 FIS on the complaint of the decree holders. PW2, Commissioner, also deposed that he was obstructed by the judgment debtors on 5.10.2016, when he visited the property to execute the decree. Therefore, with police aid, he again visited the property on 14.10.2016, and the decree was executed. So, it is evidently clear that the Judgment debtors, who are bound by the decree and who have not challenged the same, have violated the decree wilfully and purposely, knowing fully the consequences of such acts and trespassed into plaint schedule property and had cut 9 OPC 2706/24 2025:KER:27134 open the way and demolished the western boundary and fencing. The execution court has elaborately considered the evidence adduced on the side of the decree holders and judgment debtors and entered into a categoric finding regarding the violation made by the judgment debtors. Thus, the E.P. was sought to be executed by sending the judgment debtors and additional debtors to civil prison for one month. 8. It is to be noted that when the original judgment debtors are ex-parte in execution proceedings, they are debarred from challenging the same by filing this O.P.(C) as they have not contested or filed any objection to E.P. and thus, when the averments and allegations raised are admitted by them. Therefore, on the overall facts and circumstances of the case, I am of the view that no interference is warranted with Ext.P9, the order in E.P.No.150 of 2011 in O.S. No.191 of 2007. 10 OPC 2706/24 2025:KER:27134 In the result, this O.P.(C) is dismissed. Sd/- BASANT BALAJI JUDGE dl/ 11 OPC 2706/24 2025:KER:27134 APPENDIX OF OP(C) 2706/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 18-10-2011 IN OS NO 191/2007 ON FILE OF THE MUNSIFF COURT KARUNAGAPPALLY Exhibit P2 TRUE COPY OF THE EVICTION NOTE IN EP 150/2011 OF MUNSIFF COURT KARUNAGAPPALLY DATED 14-10-2016 Exhibit P3 TRUE COPY OF THE EXECUTION PETITION IN EP NO 150/2011 IN OS NO 191/2007 OF MUNSIFF COURT KARUNAGAPPALLY Exhibit P4 TRUE COPY OF THE EA NO 108/2021 IN EP 150/2011 IN OS NO 191/2007 OF MUNSIFF COURT KARUNAGAPPALLY Exhibit P5 TRUE COPY OF THE IMPLEADING PETITION EA NO 107/2021 IN EP 150/2011 IN OS NO 191/2007 OF MUNSIFF COURT KARUNAGAPPALLY Exhibit P6 TRUE COPY OF THE ORDER DATED 26-11-2021 IN EA NO 107/2021 IN EP 150/2011 IN OS NO 191/2007 OF MUNSIFF COURT KARUNAGAPPALLY Exhibit p7 TRUE COPY OF THE ORDER DATED 26-11-2021 IN EA 108/2021 IN EP 150/2011 IN OS NO 191/2007 OF MUNSIFF COURT KARUNAGAPPALLY Exhibit p8 TRUE COPY OF THE OBJECTION FILED BY THE JUDGMENT DEBTORS IN EP 150/2011 IN OS 191/2007 Exhibit p9 TRUE COPY OF THE ORDER DATED 12-4-2024 IN EP 150/2011 IN OS 191/2007 OF MUNSIFF COURT, KARUNAGAPPALLY