The Kerala State Electricity Board filed this writ petition under Article 227 of the Constitution of India challenging the impugned order passed in E.P.No.41 of 2004 in O.S.No.73 of 1995. The above execution petition was filed to get executed the decree of permanent prohibitory injunction that restrained the judgment debtors from trespassing into the decree scheduled property and tampering with its boundaries and cutting open a new pathway through it and also from doing any waste or other kind of act that would affect the plaintiffs' peaceful enjoyment of the property. The decree holders filed the E.P contending that, though, the judgment debtors had sufficient opportunity to obey the decree, they have wilfully violated the decree by trespassing into the decree scheduled property and tampered its boundary in its southern side and cut open a new pathway through almost its middle portion in the north-south direction and further caused to drew overhead electric lines thorough it. The 2nd judgment debtor filed objection denying all the allegations put forward by the decree holders. According to them, they never tampered its boundaries and demolished the residential building allegedly stood therein. It is also contended that the K.S.E.B authorities with the consent of the Panchayath drew overhead electric lines through the decree holders' property and they have no involvement in drawing the electric lines. After considering the rival contentions, the executing court passed the impugned order, inter alia, directing the K.S.E.B authorities, Electrical Section, KSEB, Parippally to remove overhead electric line drawn through the decree scheduled property within a month from the date of the order and to clear the property. This writ petition is filed challenging the legality and propriety of that part of the impugned order which directed the KSEB authorities to remove the overhead lines.
2. The learned counsel for the petitioner advanced arguments challenging the findings and the direction issued thereunder against KSEB. According to him, KSEB was not a party either in the original suit or in the execution petition. Without making KSEB a party, the impugned order was passed and the order is legally unsustainable, in view of the absence of the definite finding that KSEB has wilfully violated the decree passed. It is also contended that the issue involved as regards the drawing of electric line is a matter dealt with Indian Telegraph Act and Indian Electricity Act. The decree holders are not resorted to remedies as provided under the said Act.
3. The short question that arises for consideration is, whether the execution court has exercised jurisdiction illegally or with material irregularity ? Prima facie, I find that, KSEB is not a party either in the original suit or in the execution petition. It is also seen that, an injunction order has not been passed against Electricity Board restraining them from drawing electric transmission lines through the plaint schedule property. The drawing of line was also not an issue involved in the original suit. But, it is seen that without making Electricity Board as a party in the execution petition, a direction has been issued against the KSEB authorities at Electrical Section, KSEB, Parippally to remove the electric lines drawn through the decree scheduled property within one month. I find that this direction is legally unsustainable and liable to be set aside and I do so. It is made clear that, if the decree holders are aggrieved by the drawing of line, they are free to restore remedies provided under Indian Telegraph Act and Indian Electricity Act and this judgment would not stand in the way of seeking such remedies. The impugned order will stand set aside to the extent of direction issued to the KSEB authorities at Parippally only.
This writ petition is allowed.
Stu //True copy// P.A to Judge K.HARILAL, JUDGE.