SOSAMMA Vs. ABRAHAM

JUDGEMENT

(1.) THE first judgment debtor in E.P. No.30 of 2002 in O.S. No.209 of 1992 of the court of learned Munsiff, Kattappana is the petitioner before me challenging Ext.P8, order on an application for review of Ext.P5, order dated 20.10.2006 in E.P. No.30 of 2002 directing delivery of property. Dispute concerns two acres of land and a building thereon described in the plaint and decree schedules. Respondent-plaintiff sued for a decree for prohibitory injunction against trespass and his being dispossessed from the said property. THE suit was decreed on July 05, 1995. Respondent filed E.P. No.5 of 2001 under Order XXI Rule 32 of the Code of Civil Procedure (for short, "the Code") requesting to evict petitioner from the suit property alleging that she took possession thereof dispossessingrespondent in violation of the decree.That execution petition ended in a dismissal as per Ext.P2, order dated 6.07.2002 on a finding that there is no evidence of violation of the decree. Later came E.P. No.30 of 2002 where according to the petitioner, the same relief sought for in E.P.No.5 of 2001 was claimed. In that E.P., the executing court passed Ext.P5, order on October 20, 2006 according to the learned counsel, by a single line order, without referring to the contentions of parties and without any finding that petitioner has willfully violated the decree. For review of the said order petitioner filed E.A. No.99 of 2010. That application was dismissed as per Ext.P8, order which is under challenge.Learned counsel has contended that execution of decree under Order XXI Rule 32 is possible only when there is a finding regarding willful disobeyance of the decree. No such finding is entered in the present case. It is also contended that E.P. No.30 of 2002 is barred by the principle of res judicata in view of Ext.P2, order in E.P. No.5 of 2001. Learned counsel contended that there is not even an averment that at any time after Ext.P2, order petitioner has trespassed into the suit property or took forcible possession.

(2.) ORDER XXI Rule 32 speaks about execution of decree for injunction and detention of judgment debtor to compel him to comply with the decree when it is shown that there is a willful disobeyance. Here there is no prayer for detention of petitioner in the civil prison and instead the prayer is for delivery of property which petitioner took possession allegedlyin violation of the decree.