SAMUEL Vs. MADHAVAN

JUDGEMENT

(1.) Petitioners are the respondents to E.P. No. 161 of 1987 in O.S. No. 314 of 1986 of the Munsiff's Court, Pathanamthitta. The above suit for a permanent injunction was decreed against them on 10-4-1987. The respondent decree holders filed the above E.P. under O.21 R.32 C.P.C. alleging that the petitioners trespassed into the suit property, demolished its eastern boundary kayyala, removed trees indiscriminately and caused enormous loss to them. Petitioners in their statement of objections denied the allegations and maintained that they did not in any manner disobey or violate the decree and pointed out that there is a 6 feet wide pathway on the eastern side of the suit property, used by them as also by the local people and when this was sought to be obstructed by the respondents by constructing a kayyala some of the local people who were not parties to the suit interfered and thwarted the attempt. The allegations in the petition are false and made to provide an excuse to take action against them unjustifiably and they prayed that it may be dismissed.

(2.) The court below examined PWs 1 to 5 and marked Exts. A1 to A6 for the respondents and DWs 1 to 3 for the petitioners. After a detailed consideration of the relevant materials it was held that the petitioners had disobeyed / violated the decree and hence liable to be proceeded against under O.21 R.32 C.P.C. The finding, in my view, is legal and valid and deserves to be upheld.

(3.) A commissioner had visited the property and in his report he had given the details of the trees cut as also about the destruction of the kayyala and gave, an approximate estimate of the loss sustained by the respondents. But the court below did not wholly endorse the assessment of damages made by the commissioner and held that the respondents are entitled to Rs. 10,750/- as compensation, which the petitioners/judgment debtors were directed to pay. In my view, the court below was wrong to have passed such an order without resorting to the provisions in O.21 R.32, under which "where the party against whom a decree for an injunction has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it the decree may be enforced .... by attachment of his property, by detention in the civil prison, or by both". Under sub-r.(3), -