SUMATHYKUTTY AMMA Vs. SUMANGALA DEVI

JUDGEMENT

(1.) Petitioner is the defendant in OS 83/1993 on the file of the Munsiff Court, Haripad. In the above suit, a decree of mandatory injunction was passed directing the petitioner to remove a fence over a pathway scheduled in the suit. A decree of prohibitory injunction was also passed against him not to cause any interference to the enjoyment of that pathway by the plaintiff in the suit. Respondents are the plaintiffs in that suit. Since the direction given under the mandatory injunction was not complied with the plaintiffs, the respondents, moved for executing that decree and pursuant there to an Ameen deputed by the Court removed the fence and during the course of executing the decree, some of the trees in the pathway were also cut down. Petitioner thereupon moved an application before the execution Court contending that the decree provided for only removal of the fence, and cutting down of the trees by the Ameen, allegedly, at the instance of the decree holders, was in excess of the decree, for which she should be compensated. An enquiry on the allegations raised in the petition was proceeded by the learned Munsiff with notice to the decree holders. The order passed by the learned Munsiff after such enquiry is challenged in the revision. During the pendency of the enquiry in the light of the contention taken by the decree holders that the Ameen alone was culpable for cutting down the trees the petitioner moved an application for his impleadment as an additional counter petitioner in the proceedings. That application was dismissed by the Court below by order dated 23/03/2005. That order is challenged in the above writ petition invoking the supervisory jurisdiction vested with this Court under Art.227 of the Constitution of India.

(2.) I heard the counsel on both sides. A preliminary objection was raised by the learned counsel for the respondents that the writ petition is barred by time as the order impugned thereof had been passed nearly three years ago. I find considerable force in that submission. A writ petition under Art.227 of the Constitution cannot be entertained if it is filed beyond reasonable time. However, the dismissal of the writ petition in the given facts of the case on the above ground will have no impact in the revision which is filed against the final order passed in the proceeding. The petitioner can canvass in the revision whatever orders passed by the Court during the course of the enquiry on his application. So much so I need not labour much as to whether the writ petition filed against the interlocutory order passed in the enquiry is barred by time. The learned counsel for the respondents / decree holder has also raised another objection that the application moved by the defendant / judgment debtor is not entertainable under S.47 of the Code of Civil Procedure as the act imputed causing damage to him in execution of the decree was done by the Ameen deputed by the Court. I do not find any merit in that submission. When any party to a proceeding or a suit approaches a Court that its decree has been executed in excess of the decree, the question for determination squarely falls under S.47 of the Code of Civil Procedure. Further more the Ameen has no independent status as he had been deputed as an officer of the Court to execute the decree. The impleadment of the Ameen in the present case is totally unwarranted because the acts done by him, whether it be excess or not of the decree, should be deemed as having been done by the Court. Whether he should be penalised, or disciplinary proceedings should be proceed against him, is not to relevant when one among the parties in a suit approach the Court with a grievance that in execution of the decree it was executed in excess than what was granted under the decree and thereby he or she suffered damages. If materials are placed satisfying the Court that the grievance deserve consideration, necessarily, it has to be enquired into in accordance with law and remedial measures should be taken. In the given facts of the case the decree provided only for removal of a fence in the pathway and there was no decree for cutting down any trees situate in the pathway. If that be so, for any act done by the Ameen in cutting down the trees in the pathway thereby causing damages to the judgment debtor, the acts so done prima facie showing that it had been done in excess of the decree the decree holders cannot wash off their hands contending such acts were done by the Ameen and not at their instance. The decree was executed in the presence of at least one among the decree holders and she had a duty to inform the Ameen the scope of the decree and the limitations within which it was to be executed. I find the Court below has not adverted to any of those aspects, but dismissed the petition only on the ground that the Ameen was not made a party in the proceedings. Strangely enough the impleadment of the Ameen sought for by the petitioner had been turned down holding that Ameen being an officer of the Court acted only bona fide in cutting down the trees, and committed no mischief in execution of the decree, therefore no relief can be granted to the petitioner. Such conclusions were drawn without even issuing notice to Ameen. Courts as instrumentalities of justice are bound to see that its decree is executed in accordance with the terms of the decree and not in excess. The order impugned dated 22/11/2008 passed by the learned Munsiff dismissing the application of the petitioner cannot be sustained under law and it has to be set aside. I do so. The learned Munsiff is directed to reexamine the matter afresh in the light of the observations made above and pass appropriate orders in accordance with law. Since the matter has been pending for quite long, the learned Munsiff is directed to dispose the petition passing final orders within three months from the date of receipt of a copy of this judgment. Writ petition is closed, and the revision is allowed as indicated. Hand over a copy of the judgment to the counsel on both sides on usual terms.