PADMAKSHI AMMA Vs. HASHIM

JUDGEMENT

(1.) THIS C. R. P. is filed by the respondent in E. P. 67/98 in o. S. 371/94 of the Munsiffs Court, Kochi against the order dated 10. 9. 98 in the same E. P. The revision petitioners are the defendants in O. S. 371/94 of the Munsiff s Court, Kochi. That suit was filed for an injunction restraining the revision petitioners from making any alteration, addition or modification to the plaint schedule building. The petitioners are the legal heirs of Raman who was the original tenant. In the building a hotel is being conducted. The suit was filed on the premise that the tenants have effected certain alteration in the building. The suit was decreed restraining the defendants from making any alteration, addition, modification and from causing any damage and waste to the plaint schedule building.

(2.) SUBSEQUENTLY the respondent filed E. P. 67/98. He prayed for arrest and detention of the judgment debtors in Civil Prison for attachment of both movable and Immovable properties and to stop all the work carried on in the decree schedule properties. In the E. P. it was averred as follows: The judgment debtor have. wilfully disobeyed the decree and they are carrying on alteration work and modification work committing damage and waste in violation of the decree. It is therefore, prayed that this Hon'ble Court may be pleased to: a. issue notice to the judgment debtors why they should not be detained in Civil Prison. b. The judgment debtors may be arrested and detained in civil Prison for enforcement of the decree. C. by attachment of both movable and immovable properties of the judgment debtors. d. to stop all the work carried on in the decree schedule property rendering police help to the decree holder. e. and to allow such other appropriate reliefs the decree holder may pray for in enforcing the decree which the Court may deem fit to grant for executing the decree. After getting the notice, the respondents contended that the E. P. is not maintainable as E. P. does not disclose the basis on which the violation is committed. This objection was taken as a preliminary ground. The court below considered the same; but dismissed it. The Court below took the view that the. averment in the E. P. in paragraph 11 is enough. In the above view of the matter, the court below held that the petition was maintainable.

(3.) THE remedy provided under O. XXI R. 32 with regard to injunction is to take action against the judgment debtors for violation of injunction. THE injunction consists of both mandatory and prohibitory. For this purpose, the decree holder has to show in the execution petition as to how the injunction has been violated. THE averments should show the acts made in violation of decree and when was it done. Even if such an averment is not contained in the E. P. atleast the decree holder should have filed an affidavit regarding the nature of the violation made. It appears the object of the decree holder was to find out whether there is any violation by filing E. P. and by sending a Commissioner to find out if there is any violation. THE E. P. cannot be made use of collecting evidence on behalf of the decree holder.