JIHAS Vs. SALIM

JUDGEMENT

(1.) The petitioner is the 5th defendant in E.P. No. 355 of 2011 in O.S. No. 1264 of 2006 on the files of the Court of the Principal Munsiff, Ernakuiam as well as the 5th respondent in E.A. No. 538 of 2011 filed therein. E.P. No. 355/2011 was filed for the execution of the compromise decree passed in O.S. No. 1264/2006. This O.P. is filed under Section 227 of the Constitution of India challenging the impugned order passed in E.A. No. 538 of 2011 referred above. E.A. No. 538 of 2011 was filed by the decree holders under Section 151 of the Code of Civil Procedure to pass an interim order restraining the judgment debtors from constructing the third floor or making any form of further construction above the second floor in the building situated in the plaint schedule property during the pendency of execution petition.

(2.) It is the case of the decree holders that the judgment debtors have violated the decree by acting in violation of the terms of the compromise. More specifically, the decree holders contended that though the judgment debtors 1 to 4 are prohibited from constructing a multi storied building having more than second floor in the plaint schedule property, the defendants have started the construction work for the third floor in violation of the decree. In the I.A., they have prayed for passing an order of injunction restraining the judgment debtors from constructing third floor or making any form of further construction above the second floor of the building in the plaint schedule property pending execution petition. Along with the execution petition, the decree holders filed a commission application for local inspection and the commission appointed by the court had filed Ext. C1 report.

(3.) The judgment debtors entered appearance and the 5th defendant filed a counter affidavit for and on behalf of the judgment debtors. He contented that the construction in the plaint schedule property is not being done by the judgment debtors; but by him in his individual capacity. His case is that he had purchased the plaint schedule property from the judgment debtors 1 to 4 and some other persons who are not parties to the suit, by way of sale deed No. 2962 of 2009, which is marked as Ext. B 1. Since he is not a party in his individual capacity to the suit as well as to the compromise, the compromise decree passed by the court is not binding upon him as the alleged work is going to be done in capacity; Secondly, at the time of entering the compromise, the building rules only permitted construction of ground floorplus two floors in that property. It was in that circumstance, in the compromise, it was stated that the defendants shall construct only ground floor plus two floor building. Now, the building rule has been changed and according to the present rule in force, the judgment debtors are permitted to make construction of the ground floor plus three floor building and he had already obtained a valid permit from the Corporation and the construction is being carried out strictly in accordance with the permit granted by the Corporation. Since the act which is being done by him is one in his personal capacity as the absolute owner in possession of the property, the compromise decree wherein he represented the 5th respondent company is not binding on him.