IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 32007 of 2009(O)


1. KALLERI K.BALAN, S/O. KUNHIKKANNAN,
                      ...  Petitioner

                        Vs



1. PADINHARE VARIYATH NARAYANAN VARIYAR,
                       ...       Respondent

2. SECRETARY,

                For Petitioner  :SRI.K.LAKSHMINARAYANAN

                For Respondent  :SRI.SUDHEESH.A.

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :07/10/2010

 O R D E R
                      HARUN-UL-RASHID, J.
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                    W.P.(C).No.32007 Of 2009
                       ----------------------
            Dated this the 7th day of October, 2010.

                          J U D G M E N T

Petitioner is the defendant in O.S.No.79 of 2004 on the file of the Munsiff-Magistrate Court, Payyoli. Suit was decreed on 31.10.2005. Ext.P1 is the decree. The decreetal portion of the judgment reads as follows:

"It do hereby made clear that in the event of complying the measures suggested in Ext.C2 report by the 1st defendant, he can operate his flour mill notwithstanding the order of injunction".

2. The petitioner submits that in terms of the decree he had complied with all the conditions laid down therein and he started functioning the flour mill after passing of the decree. It is said that he has taken all pollution control measures such as covering the openings and ceiling by filter cloth, provided an exhaust fan with arrangement of dust extraction system. He also covered the front side opening by a masonry wall with glass window covered the multi grinder with wooden planks. on compliance with all the conditions laid down in Ext.P1 decree it is said that the sound emanating from the mill is within the  W.P.(C).No.32007 Of 2009 ::2::

permissible limits. Petitioner also obtained consent to operate the mill under the Air (Prevention & Control of Pollution) Act (hereinafter referred to as the Act).

3. The first respondent filed an execution petition as E.P.No.224 of 2005 alleging non-compliance of conditions in Ext.P1. It is said that the first respondent/plaintiff took out a commission without notice to the petitioner. The petitioner was not present in the premises. It is said that the advocate commissioner made the inspection on a holiday (4.12.2005) when cleaning and maintenance work was done in the flour mill. It is also averred in the writ petition that no notice was given about the inspection. The report filed by the advocate commissioner on 2.1.2006 is marked as Ext.P2. The petitioner filed Ext.P3 detailed objection to Ext.P2 report. In view of the objection raised, the executing court called for a report from the Environmental Engineer. The Environmental Engineer submitted a report on 11.8.2005. He again inspected the site along with the advocate commissioner on 31.3.2006.

3. Ext.P4 is the report submitted by the Environmental Engineer and Ext.P5 is the advocate commissioner's report.  W.P.(C).No.32007 Of 2009 ::3::

Environmental Engineer reported in Ext.P4 report that the flour mill is found functioning with satisfactory air and sound pollution measures such as covering the openings and ceiling by filter cloth, provided an exhaust fan with arrangement of dust extraction system. It is reported that while working of the multi grinder, sound level was measured at distance of one mete away from the boundary of the premises and in the premises of the shop owned by the plaintiff in the shop situated at south-east side of the flour mill. The Environmental Engineer further reported that based on the monitoring of sound level it is observed that the flour mill has provided the pollution control measures satisfactorily in order to avoid any pollution problems caused duet to operation of grinding machines and that the Board has granted consent to operate the flour mill under the provisions of the Air Act after necessary verification of pollution control measures provided in the flour mill. The commissioner also reported the same sound level as reported by the Environmental Engineer. The report of the commissioner is more or less in tune with the report submitted by the Environmental Engineer.  W.P.(C).No.32007 Of 2009 ::4::

4. The plaintiff in the suit filed a petition to set aside the commissioner's report and the report submitted by the Environmental Engineer. The trial court after referring to the facts subsequent to the passing of the decree and also referring to the report submitted by the commissioner and the Environmental Engineer which are marked as Exts.P4 & P5 held that the Environmental Engineer reported that the judgment debtor had complied with all the measures suggested by him and at present the flour mill is functioning within the prescribed limit of the sound level. It is also found that the judgment debtor had taken precautions for avoiding air pollution and it is functioning satisfactorily. The court also noted that the judgment debtor had obtained the consent to operate his unit from the Pollution Control Board under the provisions of the Air Act. Based on the materials which I have referred to in the preceding paragraphs the executing court by order dated 11.7.2006 dismissed the petition stating that there is absolutely no scope for another report from another expert and that the present E.A is outside the scope of execution petition and devoid of any merit. Ext.P6 is the said order.

W.P.(C).No.32007 Of 2009 ::5::

5. In spite of the fact that the Environmental Engineer and the commissioner reported that the flour mill is functioning within the prescribed limits of sound level, the learned Munsiff in the order dated 14.10.2009 in E.P.No.224 of 2005, marked as Ext.P7, held that the petitioner/judgment debtor has been running the mill in violation of the decree of injunction in O.S.No.79 of 2004.

6. I have discussed the evidence on record produced by the parties to the execution petition. The evidence on record shows that the judgment debtor has not violated the conditions stated in Ext.P1 decree. Learned Munsiff has not even referred to Exts.P4 & P5 reports submitted by the Environmental Engineer and the advocate commissioner. Therefore, the findings of the learned Munsiff in Ext.P7 order that the judgment debtor has violated the decree of injunction in O.S.No.79 of 2004 is without any basis and it is against the facts and evidence recorded in the execution petition. After finding that there is violation of the decree, the learned Munsiff held that the judgment debtor had disobeyed the decree wilfully and therefore the decree can be enforced by detaining the petitioner in civil prison and attaching  W.P.(C).No.32007 Of 2009 ::6::

the decree schedule property. Since on facts, evidence and circumstances, the finding that the judgment debtor has violated the decree cannot stand legally, there is also no basis for the order that the decree can be enforced by detaining the petitioner in the civil prison for one month and by attachment of the decree schedule property.

7. Learned counsel for the petitioner also referred to the decision reported in Narayani v. Thankappan (1991 (2) KLT

704) in which it was held that Order XXI Rule 32 Code of Civil Procedure is intended to enforce certain classes of decrees. One such class is a decree for injunction. Such a decree can be enforced by detention of the disobeying party in civil prison or by attachment of his property or by both. It is further held in the said decision that Order XXI Rule 32 is not intended to punish a contumacious party. The said Rule can be invoked only for enforcement of a decree. According to the learned counsel, the execution petition filed for enforcement of the decree, for detention of the judgment debtor in civil prison and for attachment of his property is not maintainable. According to the learned counsel, for violation of the order of injunction, the  W.P.(C).No.32007 Of 2009 ::7::

remedy open to the party is to move the court under the provisions contained under Order XXXIX Rule 2A and not by filing execution petition. In this case on merits also it was found that the judgment debtor has complied with the conditions set out in the decree itself. On the materials produced in the case there is no violation of the decree of permanent injunction. So there is no justification for passing an order by the court that too without referring to the materials placed before the court to order arrest and detention of the petitioner in civil prison and for attaching his properties and further attachment of decree schedule property.

In the result, Ext.P7 order is set aside. The writ petition is allowed.

HARUN-UL-RASHID, Judge.

bkn/-