REPAYI JOSE Vs. CHACKO LONAPPAN

JUDGEMENT

(1.) This second appeal arises from an order in execution of a decree passed on a compromise. The plaintiff's suit was for a permanent injunction restraining the defendants from entering into possession or a paddy field. The parties settled their differences during the pendency of the suit and a compromise petition was filed on the basis of which the decree was passed. The decree provided that the defendants had no manner of right or possession in the property, that they would be allowed to raise the punja crops of 1132 as licensees and that in consideration of the same, they were to pay 860 paras of paddy to the plaintiff on or before 10th Edavam 1132 (23-5-1957). It was also provided that after taking the harvest of 1132 defendants 1 and 2 were not to enter the land. The decree was passed on 11-12-1950. The decree-holder applied for execution on 23-12-1957 stating that the decree was one for permanent injunction restraining the judgment-debtors from entering into possession of the land and that they were attempting to enter the land against the terms of the decree. The prayer in the execution petition was for detention of the judgment-debtors in the civil prison and for attachment of their properties as provided by Rule 32, Order XXI, Civil Procedure Code. The 1st defendant filed objections contending that the prayers in the execution petition could not be granted, that the petition was not maintainable. in view of Act I of 1957 (Kerala) and that the decree was not maintainable. Overruling these objections the execution Court passed an order holding that the judgment-debtors were liable to be detained in the civil prison. They were allowed one month's time to comply with the decree. The judgment-debtors appealed to the Subordinate Judge, Irinjalakkuda, who confirmed the order. They nave, therefore, preferred this second appeal.

(2.) The questions considered by the Courts below were whether there was a decree for injunction which was capable of execution and whether the judgment-debtors were entitled to possession of the land under Sections 6 and 7 of Act 1 of 1957 and Ordinance I of 1957 (Kerala). It is unnecessary to consider these questions now, as in bur opinion the second appeal must be allowed on a short ground. As stated earlier the prayer of the decree holder was that the judgment-debtors should be detained in the civil prison and their properties placed under attachment under Rule 32 of Order XXI as they were attempting to enter the land in violation of the decree for injunction. Order 21, Rule 32 (1) provides as follows :

(3.) It follows that the concurrent orders can- not stand. We, therefore, allow the second appeal and set aside the concurrent decisions of the Courts below. In the circumstances of the case we do not make any order as to costs.