GEORGE P. CHERUKOTH Vs. MARIYUMMA AND ORS.

JUDGEMENT

(1.) THE revision petitioner, who is the plaintiff/appellant in A.S. No. 25 of 2010 of Sub Court, Perumbavoor, is aggrieved by dismissal of I.A. No. 1178 of 2011, by which he sought review of the judgment and decree of the appellate court.

(2.) THE plaintiff, who was the owner of an item of property, contented that the 1st defendant who was the owner of western property, indiscriminately and unscientifically excavated his property and thereby caused serious threat of loss of lateral support to plaintiff's property from the defendants property. Mandatory and prohibitory injunctions were sought to restore the lateral support and to prohibit the defendant from removing soil from plaint 'B' schedule property, without leaving at least 15 ft. width from the boundary. The trial court, refused to grant mandatory injunction, but granted a relief of prohibitory injunction. It was carried in appeal, at the instance of the plaintiff. The lower appellate court substantially allowed the appeal. This was challenged in second appeal by the defendants which was dismissed at the thresh hold, without notice to the plaintiff. In the meanwhile, the plaintiff had filed I.A. No. 1178 of 2011, seeking a review of the judgment and decree to the extent of incorporating a permission to the plaintiff to carryout and complete the work and to recover the amounts from the defendants, in case they disobeyed the mandatory injunction decree. This was dismissed by the court below, holding that the second appeal filed by the defendant stands disposed of and hence there was no scope for invoking the power of review. The legality and correctness of the above order is impugned in this revision.

(3.) THE grievance of Mr. V. Rajendran, the learned counsel for the Revision Petitioner/Plaintiff was that though the lower appellate court allowed the appeal and directed the defendants to restore the lateral support by constructing a supporting wall, the court did not go further to permit the plaintiff to do the work at the cost of defendants, in case of their disobedience and to recover it from them. It was contended that any relief of mandatory injunction without such a default clause would render relief 'C' of the decree nugatory, ineffective and unexecutable, since the entire burden of construction by the plaintiff would involve huge expenses. It was on this premise that the review was sought. However, the judgment of the lower appellate, a copy of which was made available at the time of hearing show that the court has clearly dealt with this prayer, at para 19 of the judgment as follows: