Mathai Kunhu A Princess Mathew v. Varghese A Sunny
1995-05-26
P.A.MOHAMMED
body1995
DigiLaw.ai
ORDER P.A. Mohammed, J. 1. The revision petitioner is the judgment -debtor in O.S. No. 261 of 1981 on the file of the Principal Sub Court, Ernakulam. The respondent - decree holder filed E.A. No. 418 of 1994 to depute an experienced commissioner for fixing the boundary separating the plots C IIA and C IIB specified in the plan appended to the decree with the assistance of the Village Officer as well as the local police. This petition has been filed under S.151 of the Code of Civil Procedure. After the enquiry it was allowed by the court below by the order dated 6.1.1995. It is against the said order the present revision petition has been filed. 2. The facts which are necessary to resolve the dispute in this case, are capsulized thus: The suit, O.S. No. 261 of 1981 was laid for partition of the Plaint schedule property having 64 cents and separate possession of the plaintiffs half share. A final decree for partition was passed on 18.9.1992. The judgment -debtor was in possession and occupation of the property throughout. The Commissioner divided the plaint property into two equal halves and filed a report demarcating the shares to be allotted to each of the sharers and marked the plots as C II-A, and C IIB. The plot C II-A was allotted to the decree holder whereas plot C II-B was allotted to the judgment debtor. After the final decree, the decree holder filed E.P. No. 671/93 for executing the decree and thereby obtaining possession of the plot C II-A. The judgment debtor who was in possession of the entire property requested the court that he should be granted six months time to hand over possession of plot C II-A to the decree holder in terms of the decree. This court on 14.8.1993 granted a period of two months to the judgment debtor on condition that he would file an affidavit before the lower court unconditionally undertaking to surrender possession of the decree- holder's share within the said period. The judgment -debtor on 15.9.1993 filed the affidavit before the court below in compliance with the direction given by this court.
The judgment -debtor on 15.9.1993 filed the affidavit before the court below in compliance with the direction given by this court. On 18.10.1993, the judgment debtor surrendered plot C II-A to the decree holder voluntarily and thereby he entered into possession of plot C II-A. But when he proceeded to put up the fence at the boundary separating the plots C II-A and C II- B, the judgment -debtor resiled from his undertaking and objected to putting up the fence. In that situation, the decree -holder filed E.A. 1418/93 for injunction against judgment debtor and for police protection in putting up the fence on the boundary. That application was dismissed by the court below on 21.3.1992 in view of the fact that the execution petition filed by the decree holder, E.P. No. 671/93, was no longer in existence since it was already dismissed by the court on 19.10.1993, consequent on the delivery of the property to the petitioner. Later the decree-holder filed the present E.A. 418/94. In that petition the court below came to the conclusion that since there is no boundary separating the plots CII-A and C II-B it is necessary to measure out the properties again and to fix the boundary separating the said two plots. Therefore, a commissioner was appointed to measure the properties and to fix the boundaries with the help of the Village Officer. 3. The learned counsel for the petitioner argued that the application, E.A. No. 418/94 was not maintainable in as much as the execution petition E.P. No. 671 of 1993 was no longer in existence. He points out that the above E.P. was dismissed on 19.10.1993 consequent on the delivery of the plot C II-A property to the decree -holder on 18.10.1993. Of course this is a fact which is apodictic, . but at the same time this court cannot overlook the existence of the decree in O.S. No. 261 of 1981. When there is a competent decree and its executability is no longer in dispute, can this court forestall the decree holder from enjoying I the fruits of the decree? S.47 C.P.C. covers the questions which are relevant at the anterior as well as posterior stages of execution of the decree. It embraces all matters connected with the execution of.
When there is a competent decree and its executability is no longer in dispute, can this court forestall the decree holder from enjoying I the fruits of the decree? S.47 C.P.C. covers the questions which are relevant at the anterior as well as posterior stages of execution of the decree. It embraces all matters connected with the execution of. an existing decree between the parties or their representatives and also covers all questions relating to the execution, discharge or satisfaction of the decree. The principle laid down by the Supreme Court in Merla Ramanna v. Nallaparaju ( AIR 1956 SC 87 ) would evince that it is immaterial whether such questions arise before or after the decree has been executed. In M.P. Shreevastava v. Mrs. Veena AIR 1967 SC 1193 it was held: "The principle of the section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit. It follows as a corollary that a question relating to execution discharge or satisfaction of a decree may be raised by the decree holder or by the judgment -debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise." Therefore a petition for enforcement of a decree by a decree holder cannot be said to be incompetent after the dismissal of execution petition by the executing court. 4. It was however pointed out that on an earlier occasion the decree holder has filed E.A. No.1418 of 1993 in the same execution petition and it was dismissed by the court below on the ground that the execution petition was earlier dismissed. In the said order passed by the court on 21.3.1994 it is observed as follows: "The Amin delivered the property to the petitioner without measurement since the petitioner has not sought for the assistance of a surveyor to measure the property.
In the said order passed by the court on 21.3.1994 it is observed as follows: "The Amin delivered the property to the petitioner without measurement since the petitioner has not sought for the assistance of a surveyor to measure the property. Therefore, the boundary of the property has not been identified by the Amin at the time of the delivery of the property." It was in view of this reason the petition, E.A. No. 1418 of 1993 was dismissed by the execution court, The court while dismissing the petition took note of the circumstance that the property was not identified by the Amin at the time of its delivery to the decree holder. It is also revealed from the order that there was a dispute with regard to the southern boundary and the Amin had delivered the property without measurement and without identifying the boundary. In view of the aforesaid reasons it cannot be said that the decree holder is totally de-barred from filing the present application for appointment of an experienced commissioner for fixing the boundary. The relief sought for in the present petition is not the same as contained in E.A. No. 1418/93. E.A. No. 1418/93 was filed by the decree holder for the issue of an order of injunction restraining the judgment debtor from obstructing the petitioner from putting up the boundary wall. That petition was not allowed because the property had already been delivered to the petitioner. Of course, that delivery was made without measurement. It appears to me that the present application has been filed for appointment of an experienced commissioner for fixing the boundary separating plots CIIA and CIIB. It is no doubt a dispute pending in the execution for enforcement or satisfaction of the decree and the decree holder cannot in such circumstance be asked to file a fresh suit for obtaining the relief sought for in the present petition. 5. The present application, E.A. No. 418/94 has been filed under Section 151 of the Code of Civil Procedure. The counsel for the judgment - debtor maintains that the decree - holder is not entitled to move the execution court invoking its inherent power.
5. The present application, E.A. No. 418/94 has been filed under Section 151 of the Code of Civil Procedure. The counsel for the judgment - debtor maintains that the decree - holder is not entitled to move the execution court invoking its inherent power. However, the counsel for the decree holder has brought to my notice, a decision of this court in Beeravu and others v. Kathiyamma & others 1973 KLT 557 where the ambit the scope of inherent, power of the court under Section 151 has been profoundly discussed as thus: "There may be cases where a wrong is caused to a party not by the court but by the process of court. Though the court itself may not have done any wrong to the partly, interests of justice require the court to set right the wrong caused because the court would like to give relief against abuse of its own process. There may be cases not covered by the situations mentioned, but where justice requires that the court should interfere, as for example, issue of injunction in cases not covered by O.XXXIX of the Code of Civil Procedure. The element of compulsion on the court to exercise its discretion may vary in these different categories of cases. But there is essentially a duty in a court to exercise inherent power and it is that duty which the court will exercise if the circumstances of the case require it." In The Newabgani Sugar Mills Co. Ltd. and other v. The Union of India and others, AIR 1976 SC 1152 the Supreme Court observed to the effect that though there are limitations on the powers of the court it cannot abandon its inherent powers under S.151 C.P.C. The inherent power has its roots in necessity and its breadth is co-extensive with the necessity." The factual situation in the present case undoubtedly justifies the necessity of invocation of power under S.151 C.P.C. My conclusion therefore is that power has been properly exercised by the court below in the present case. 6. The only question remains to be considered is whether this court can interfere in exercise of its power under S.115 C.P.C., with the order passed by the court below.
6. The only question remains to be considered is whether this court can interfere in exercise of its power under S.115 C.P.C., with the order passed by the court below. Apart from the position that the power has been properly exercised by the court below there is yet another circumstance which compels this court to deny the claim of the judgment debtor in this case. As noticed earlier this court on 14.8.1993 granted a two months' time to the judgment -debtor to surrender possession of plot C II-A to the decree holder. He has given an undertaking before the court below that he would surrender possession of the above plot within a period of two months. However, the order of the court below indicates that the judgment debtor has violated the said undertaking. It is further revealed from the said order that the decree holder has filed E.A. 1418/ 93 for police protection for putting up fence on the boundary. This petition was found necessary in view of the objection raised by the judgment debtor against a. fence being put up between plots C II-A and C II-B. It can therefore be safely said that the judgment debtor has not respected the undertaking given before the court. When there is an undertaking to surrender possession unconditionally there is no question of any dispute being raised at the time of actual surrender. The raising of such dispute would amount to violation of the order of the court. A person who has violated the order of a court cannot be allowed to take advantage of such violation when it clearly comes to the notice of the court. He cannot be allowed to take an undue advantage through the process of court. No person shall be allowed to flourish on violation of an order of court which he is bound to implement. In that view of the matter, I am not satisfied that this is a fit case where this court should interfere in exercise of its power under S.115 of C.P.C. The order under revision is clearly legal and proper and hence it is liable to be upheld. I do so. The revision petition is accordingly dismissed. No order as to costs.