JAMES Vs. MATHEW

JUDGEMENT

(1.) In these civil revisions the one important question raised for a decision is whether a decree for prohibitory injunction obtained against the defendants who were sued in a representative capacity is enforceable under O.XXI R. 32 of the Code of Civil Procedure (for short 'the Code') against persons for who are not eo nomine parties to the suit but for whose benefit also the suit was defended Another question raised is as to the sufficiency of evidence let in by the first respondent/decree holder against the persons who are alleged to have wilfully disobeyed the decree so as to proceed against them. The first respondent-decree holder filed O.S. No. 188 of 1999 in the Munsiff's Court, Erattupetta against the defendants, their associates and the general public of the locality trespassing into the plaint schedule property, committing waste therein or cutting open any new way from the said property. Considering the nature and character of the road referred to in the plaint schedule, the first respondent instituted the suit invoking R.8 of O.1 of the Code, obtained leave of the court and made the necessary publication. The court passed a decree in favour of the first respondent as prayed for (I am told that the judgment and decree are under challenge in S. A. No. 660 of 2008).

(2.) The first respondent filed E.P. No. 10 of 2004 alleging that JD No. 14 (who was not an eo nomine party in the suit) demolished the stone wall and opened a road in violation of the decree. The executing court passed Ext. A3, order dated 30.11.2006 directing JD No. 14 to close down the newly constructed road by erecting a stone wall at a height of 6 feet across the road at the portion where it touches the plaint schedule property. Though JD No. 14 challenged that order in revision, it was dismissed as per Ext. A4, order. Thereafter JD No. 14 complied with Ext. A3 order.

(3.) The first respondent then filed E.P.No. 28 of 2010. He alleged that on 28.08.2010 at about 4:30 a.m., to the knowledge and with the assistance of JD No. 14, JD Nos. 2, 18, 21 and 22 destroyed the stone wall (constructed by JD No. 14 pursuant to Ext. A3, order) and thus JD Nos. 2, 14, 18, 21 and 22 have wilfully disobeyed the decree of the court. The first respondent requested the executing court to proceed against those judgment debtors as provided under R.32 of O.XXI of the Code. JD No. 14 contended that none of the other judgment debtors have done anything with his knowledge or assistance and that he is not aware as to what the other judgment debtors have done. He claimed that he is not responsible for whatever was allegedly done by the other judgment debtors. JD Nos. 2, 18, 21 and 22 denied that they demolished the stone wall on 28.08.2010.