DASAN NADAR SURENDRAN Vs. PARAMESWARAN PILLA THANKAPPAN NAIR

JUDGEMENT

(1.) Raising several attractive questions including the question whether a decree can be executed any number of times even after full satisfaction has been recorded in earlier execution proceedings, the judgment debtor has filed this Writ Petition under Art.227 of the Constitution of India, impugning Ext. P1 order passed by the Additional Munsiff's Court, Neyyattinkara. The decree against the petitioner was one of declaration of the respondents' title and possession over the decree schedule property having an extend of 38 cents and shown in Ext. C1(a) plan as STJK plot, a prohibitory injunction restraining the petitioner from trespassing into the above property and from interfering in any manner with respondents' title and possession over the property. The decree is also for fixation of boundaries permits putting up of boundary along with the line KJ under the supervision of an Advocate Commissioner. The petitioner alleges that in a previous execution petition, namely EP No. 223 of 2006, the work of putting up of boundary was executed under the supervision of an Advocate Commissioner with the assistance of the Surveyor and that execution petition was closed after recording the satisfaction of the decree for putting up the boundary. Petitioner complains that the present EP 510 of 2004 has been filed by the respondents seeking the same relief to have the boundary wall put up along the line "KJ" shown in Ext. C1(a) plan attached to the decree by deputing an Advocate Commissioner. On noticing the present execution petition, the petitioner filed objections contending that the present execution petition is barred by principles of res judicata and also by limitation. The grievance of the petitioner is that even before the question as to how far the above principles are applicable in this case is decided the execution Court has passed Ext. P1 order appointing a Commissioner for supervising the construction of the boundary wall through line "KJ" as shown in Ext. C1(a) plan observing that, prior execution is not a bar for execution of a decree.

(2.) I have heard the submissions of Sri. V. Chitambaresh, learned counsel for the judgment debtor and Sri. L. Mohanan, learned counsel for the respondent decree holder. Mr. Chitambaresh would submit on the authority of the judgment of the Supreme Court in Mohanlal Goenka v. Benoy Kishna Mukherjee and Others, 1953 SCR 377 : 1953 (1) MLJ 449 : 1953 MWN 328 : AIR 1953 SC 65 that the principles of res judicata are applicable to the execution proceedings. In the previous execution petition the Court had recorded satisfaction of the decree directing putting up of the boundary wall. It is therefore not open to the decree holder to seek execution of the very same decree once again. The decree is also for perpetual injunction and if respondents have a genuine grievance that decree of injunction has been violated by the petitioner, they may have to invoke the procedure under R.32 of O.21 alleging disobedience of the decree of injunction. The view of the learned Munsiff that prior execution will not bar a subsequent execution cannot receive acceptance and the learned Court is not justified in evading answer to the serious contention raised by the petitioner on the basis of principles of res judicata.

(3.) Sri. L. Mohanan, learned counsel for the respondent would submit that it is not correct to say that the Court has recorded satisfaction of the decree for fixation of boundary. In the previous execution petition the Court had deputed an Advocate Commissioner to supervise the construction of the boundary wall. Under her supervision and with the assistance of the Taluk Surveyor, the wall was constructed and report was submitted to the Court. On the basis of that report, the Court only closed the execution petition. Now what the petitioner has done is to demolish that wall and in that way to violate the decree openly bringing the judicial system to ridicule. The order of the learned Munsiff is absolutely necessary for undoing a blatant illegality which was perpetrated by the respondents. The said order is not liable to be interfered with by this Court under the visitorial jurisdiction of this Court which is expected to be invoked to avert injustice and failure of justice.