Judgment:
ORDER
S.S. Satheesachandran, J.
1. The writ petition is filed seeking the following reliefs:
i) To issue a writ of certiorari or any other appropriate writ or direction calling for the records leading to Ext. P8 and to quash the same.
ii) To issue an appropriate direction to the Court below to allow E.A. Nos. 111/2007 and 147/2007 as prayed for by the petitioner, to restore the execution petition E.P. No. 63/2007 to file, and to proceed in accordance with law.
2. Petitioner is the decree holder in O.S. No. 69/93 on the file of the Sub Court, Muvattupuzha. Suit was one for perpetual prohibitory injunction against four defendants, who are the respondents 1 to 4 in the present petition, restraining them from interfering with the possession of the plaintiff over the schedule properties and from constructing any shed in such properties. A decree in favour of the plaintiff was granted restraining the defendants from interfering with the possession of the plaintiff in respect of the schedule properties other than A schedule item No. 2 described in the plaint. Ext. PI is the copy of the decree in the suit. Nearly. 12 years after passing of Ext. P1 decree, petitioner/decree holder filed an execution petition seeking a sum of Rs. 53311/- with 12% interest from the 4th judgment-debtor, for her arrest and attachment of her property and such other proceedings against the other judgment-debtors impleading all four defendants in the suit in such petition. The Judgment-debtors appeared before the Court and resisted the reliefs claimed in the petition. Petitioner/ decree holder thereupon moved two more petitions, one for attachment of the property of the judgment-debtors and another for appointment of a commission to assess the damages purported to have been caused by the judgment-debtors violating the decree of injunction. In the execution proceedings on the application moved by the decree-holder two more persons, including a public officer, a Tahsildar, were impleaded as additional judgment-debtors. Learned sub Judge considering the applications moved by the decree-holder for appointment of a commission and attachment along with the execution petition, after hearing all the parties, passed a common order dismissing them and also the execution petition. Ext. P3 is the copy of the order. This writ petition is filed challenging the propriety and correctness of that order invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.
3. I heard the counsel for the petitioner/decree-holder.
4. The learned Counsel for the petitioner submitted that the learned Sub Judge went wrong in passing Ext. P3 order dismissing the execution petition, and, according to the learned Counsel, if the execution petition was found not entertainable it should have been returned to the decree-holder and not to be dismissed. To sustain that line of argument, the learned Counsel placed reliance on the decision reported in Raveendran v. Dadayudhan : AIR 1988 Kerala 32. The further submission of the counsel is that even in respect of a decree for perpetual prohibitory injunction granted, the decree holder is competent to file a petition under Order XXI, Rule 11 CPC for executing that decree and if any of the prayers made in such execution petition moved by the decree-holder is found not entertainable with reference to the decree sought to be executed, then, according to the counsel, the decree-holder should be given an opportunity to amend the petition and there cannot be an outright dismissal of the petition.
5. Perusing Ext. P3 order which is challenged in the writ petition with reference to the materials produced and taking note of the submissions made-by the counsel for the petitioner/decree-holder I find that the submissions made by the learned Counsel cannot be appreciated/The petitioner/decree-holder invited a decision from the Court below by filing the execution petition under Order XXI, Rule 11, CPC, in respect of a decree granted for perpetual prohibitory injunction against four persons. He got impleaded a public officer and another also in the execution proceedings as co-judgment debtors to sustain the relief claimed by him in the petition. He further moved an application to obtain attachment over the properties of the judgment-debtors to secure the relief which he canvassed in the petition. After a decision has been rendered on such application by the Court that his petition was not entertainable, it is too late in the day to contend that execution Court should have returned the execution petition. The decision relied by the counsel, Raveendran's case AIR 1988 Ker 32 (supra), has no application to the facts of this case. That was a case in which an amendment of a execution petition was sought for, and this Court held that the power of the execution Court to allow such an amendment is within its jurisdiction, if it is so found necessary for executing the decree. But the case in hand is different. Needless to point out, execution of a decree for perpetual prohibitory injunction arises for consideration only where the decree-holder has got a case the decree is violated and assistance of the Court is required to compel the judgment-debtors to obey the decree passed by the Court. Enforcement of a decree for perpetual prohibitory injunction is covered by Order XXI, Rule 32, CPC. That prevision is primarily intended to compel a person against whom a decree had been passed to comply with the order of injunction after providing him an opportunity to do so and in case of continuous wilful default on his part to obey the order by his detention in civil prison or by attachment or by both. In execution of the decree for perpetual prohibitory injunction, there cannot be a further decree for damages, as quantified by the decree holder, as sought for by the present decree-holder in his execution petition filed before the Court below. The reliefs claimed by the petitioner on the basis of the decree in his execution petition were quite Outside the scope of Order XXI, Rule 32, CPC, and despite objections raised by the judgment-debtors he pursued them and invited an adverse decision. He cannot now turn around and find fault with the Court for not returning his execution petition noting that it was defective. I do not find any impropriety or illegality in Ext. P3 order.
The writ petition is devoid of any merit, and it is dismissed.