KRISHNAN NAMBOODIRI Vs. A P UNNIKRISHNAN NAMBOODIRI

JUDGEMENT

(1.) The questions of law arising for consideration in these revisions are: (1) Whether the Court can invoke S.151 of the Code of Civil Procedure to enforce the decree for injunction and to pass an order directing delivery of the property to the decree holder from the judgment debtor who forcibly evicted the decree holder violating the decree; and (2) When a suit is withdrawn with liberty to file a fresh suit on the same cause of action, whether an order passed under R.29 of O.21 staying the execution of the decree, would revive on filing the fresh suit

(2.) The facts necessary for disposal of these revisions are the following: O.S.No.853 of 1968, on the file of the Court of the Munsiff of Kozhikode was filed by A. P. Damodaran Namboodiri against his brother Krishnan Namboodiri and the wife and children of Krishnan Namboodiri, for a declaration that the properties purchased as per Ext. A 2 document dated 31-3-1933 in the name of Krishnan Namboodiri were acquired benami for the plaintiff Damodaran Namboodiri. There was also a prayer for consequential injunction restraining the defendants from entering into the plaint schedule properties. The suit was decreed on 23-12-1971. The defendants challenged that Judgment and Decree in A. S. No. 44 of 1972 before the District Court, Kozhikode. But the appeal was dismissed on 4-12-1976.

(3.) E. P. No. 250 of 1981 was filed by the decree holder in O.S.No.853 of 1968 under O.21, R.32 for taking action against the judgment debtors for violation of injunction. That Execution Petition was dismissed on the ground that the first judgment debtor had obtained purchase certificate in his favour, issued by the Land Tribunal in O.A.No.84 of 1980. The order in E.P.No.250 of 1981 was set aside by this Court in C.R.P. No. 2391 of 1983 and the matter was remanded to the executing court. Pending C.R.P.No.2391 of 1983 the decree holder died and his son was impleaded as the legal representative. The executing court after remand dismissed the Execution Petition on the ground that the Benami Transactions (Prohibition) Act came into force after the decree and the decree holder is not entitled to the reliefs in the Execution Petition in view of the subsequent legislation. Again, the decree holder had to approach this Court in C.R.P. No. 1594 of 1989 challenging the order dismissing the Execution Petition.