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VARGHESE, AGED 66 YEARS versus ST.JOHN'S YACOBAYA SURIYANI CHURCH

High Court of Kerala

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VARGHESE, AGED 66 YEARS v. ST.JOHN'S YACOBAYA SURIYANI CHURCH - CRP No. 771 of 2006 [2006] RD-KL 3741 (18 December 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 771 of 2006()

1. VARGHESE, AGED 66 YEARS,
... Petitioner

2. KURIACHAN, AGED 60 YEARS,

3. JOHNY, AGED 43 YEARS,

Vs

1. ST.JOHN'S YACOBAYA SURIYANI CHURCH,
... Respondent

2. FR.JOHN MOOLAMATTOM, VICAR

3. M.V. GEORGE AGED 59 YEARS,

4. JOY, AGED ABOUT 47 YEARS,

For Petitioner :SRI.P.K.SOYUZ

For Respondent :SRI.S.SREEKUMAR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :18/12/2006

O R D E R

M.SASIDHARAN NAMBIAR, J.

C.R.P..NO.771 OF 2006 (E)

Dated this the 18 th day of December, 2006.

ORDER

Petitioners are decree holders in O.S.249/98. Respondents are judgment debtors. As per the decree dated 19.12.00, judgment debtors were restrained from selling the rubber trees for slaughter tapping, without the consent of General Body of first judgment debtor, Church. E.P.21/03 was filed contending that judgment debtors 3 and 4 willfully violated the decree by giving rubber trees for slaughter tapping to one Johny Kuppakkattil and therefore judgment debtors 3 and 4 are to be detained in civil prison for violation of the decree. Judgment debtors 3 and 4 filed a joint petition contending that the decree is not executable and they did not willfully violated the decree and the rubber trees were not given for slaughter tapping either to Johny or to anybody else. Three witnesses were examined by decree holder and two witnesses were examined by judgment debtors Exts. A1, A2 and C1 to C1(a) were marked. C1 report C.R.P..NO.771 OF 2006 (E) 2 was filed by the second witness examined on behalf of the decree holder. Learned Munsiff as per impugned order dated 8.6.06 held that there was no evidence to prove that slaughter tapping was done or rubber trees were sold for slaughter tapping as contended by petitioners and dismissed the execution petition. This revision petition is filed challenging that order.

2. Though notice was served on third and fourth respondents, who judgment debtors 3 and 4, they did not appear. Only respondents 1 and 2 appeared. They also supported the case of petitioners.

3. On hearing learned counsel appearing for petitioners and going through the order passed by the executing court, I find that petitioners are to be afforded opportunity to prove that there was slaughter tapping from the rubber trees as claimed by them. Some indications are available in the report submitted by the commissioner, to support the case of petitioner about slaughter tapping. Commissioner did not categorically state that it was C.R.P..NO.771 OF 2006 (E) 3 slaughter tapping. Arguments of learned counsel appearing for petitioner was that the nature of the tapping establish that it was not ordinary tapping but slaughter tapping. It is submitted that petitioner may be permitted to get an expert to inspect the property and examine the rubber trees to prove that it was slaughter tapping. In such circumstances impugned order passed by learned Munsiff is to be set aside. The executing court is directed to afford opportunity to petitioner to adduce further evidence. Petitioners are entitled to get an expert appointed for inspection of the rubber trees. M.SASIDHARAN NAMBIAR,

JUDGE.

bkn


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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