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G.RADHAKRISHNAN, S/O.GOPALA PILLAI versus KRISHNAKUMAR, S/O.SREEDHARAN PILLAI

High Court of Kerala

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G.RADHAKRISHNAN, S/O.GOPALA PILLAI v. KRISHNAKUMAR, S/O.SREEDHARAN PILLAI - WP(C) No. 20238 of 2007(H) [2007] RD-KL 13764 (23 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 20238 of 2007(H)

1. G.RADHAKRISHNAN, S/O.GOPALA PILLAI,
... Petitioner

Vs

1. KRISHNAKUMAR, S/O.SREEDHARAN PILLAI,
... Respondent

2. RAJALEKSHMI, D/O.SARASWATHY,

3. UNNIKRISHNAN, S/O.SANKARAN NAIR,

For Petitioner :SRI.R.RAMADAS

For Respondent :SRI.G.ANANTHANARAYANAN

The Hon'ble MR. Justice M.N.KRISHNAN

Dated :23/07/2007

O R D E R

M.N.KRISHNAN, J.

WP(C)No. 20238 OF 2007 H

Dated this the 23rd July, 2007.



JUDGMENT

This writ petition is filed against the order of the learned Munsiff, Haripad in E.A.94/03 & E.A.1/04 in O.S.92/92. E.A.94/03 was filed for prosecuting the 9th defendant in the suit and E.A.1/04 is filed by the very same decree holders against 9th defendant alleging that he had destroyed a coconut tree standing in the plaint schedule property by pouring kerosene on the top of it. These petitions were heard and disposed of whereby both the prayers were rejected but ultimately the court made an observation that "However by Ext.C1 commission report the decree holder has succeeded in proving that the nadavarambu which had a width of 3 feet at the time of passing of decree in O.S.92/92 was widened by partaking portions of plaint schedule item Nos:1 and 2 of properties. Therefore the decree holders are entitled to restore the nadavarambu and plaint schedule item Nos: 1 and 2 properties to its original position at the time of passing of the decree." I feel that the said observation and direction given by the court below is not in accordance with law. A decree is obtained against nine persons and if there is violation of the decree or one wants to execute the decree notice has to WPC 20238/07 2 be given to all the nine persons and they must be heard and thereafter alone that can be directed to do a particular act. I am informed that only the 9th defendant is made a party in the execution petition as well and therefore the said observation is without force and it is liable to be deleted. If the decree holder has got a case against the other defendants he must implead them as parties in the execution petition if it is already pending or otherwise he must file a fresh execution petition with a prayer and notice has to go and they must be heard and thereafter an order can be passed after hearing both sides. At the same time, as nobody has challenged the order passed against 9th defendant that has come conclusive as well. But whether 9th defendant is also bound to restore it to the original suit is a matter that can be considered while it is being dealt with other defendants after giving specific notice to them in that regard. Writ petition is allowed to that extent and disposed of as above. M.N.KRISHNAN Judge jj


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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