The petitioner is the second judgment debtor in E.P.No.243 of 1999 in O.S.No.162 of 1996 pending before the Munsiff Court, Chavakkad. The above E.P was filed under Order XXI R 32 of the Code of Civil Procedure. The petitioner and respondents 3 to 13 in the above E.P are not parties to the decree in O.S.No.162 of 1996. The case of the petitioner is that, in spite of the fact that, the decree obtained by the respondents against the 5th respondent is a personal decree against him, the court below overruling the objections of the present petitioner and other contesting respondents, found that the Execution Petition for the alleged violation of this decree for injunction is maintainable against the present petitioner and other contesting respondents. The decree was an ex parte decree. According to the petitioner, as per the decree, the W.P.(C).No.3994 of 2010 2 5th respondent alone has been restrained by a perpetual injunction from trespassing into the plaint schedule property, causing any damage to the same, and doing anything affecting the peaceful possession of the property by the plaintiff. It is contended that no publication under Order I R 8 had been effected. But, the respondent contended that the decree is binding on others also as the same was passed against the 5th respondent in a representative capacity and Order I R 8 publication was also effected for the same.
2. The learned counsel for the petitioner advanced arguments challenging the findings that execution petition is maintainable against the petitioner and other contesting respondents. Per contra, the learned counsel for the respondents advanced arguments to justify the findings in the impugned order .
3. Needless to say, the maintainability of this E.P alleging violation of decree against the petitioner who is alleged to have violated the decree under the 5th respondent is a matter inextricably intertwined with the evidence to be W.P.(C).No.3994 of 2010 3 adduced by the parties. In this case, all further proceedings in the EP had been stayed on 08/02/2010 and thereafter four years have been elapsed without any progress in the proceedings. In the above circumstance, I am of the view that the question of maintainability pails to insignificance as a preliminary issue, particularly, when the matter in dispute is one that depends upon the evidence only. An early disposal of the EP is sufficient to meet the interest of justice. The question of maintainability will remain left open and relegated to final hearing after taking evidence.
4. The execution court is directed to dispose of the E.P within three months from today after taking evidence, untrammelled by the finding in the impugned order under challenge. The parties shall appear before the Execution Court on or before 1st July, 2014.
The writ petition is disposed of.
Stu //True copy// P.A to Judge K.HARILAL, JUDGE.