Abdulrahiman v. Parameshwarai Amma — 1998 DIGILAW 319 (KER)

Judgment :- S. Sankarasubban, J. This revision petition is filed by the judgment debtor in O.S.211 of 1986. The revision if filed against the order in E.A. 8 of 1998 in E.P. 303 in E.P. 303 of 1990 in O.S.211 of 1986 on the file of the Munsiffs Court, Kasaragod. The plaintiffs instituted a suit against the defendant for two reliefs; one was for a mandatory injunction and the other was for a prohibitory injunction. There was a sketch attached to the plaint. The relief prayed for was with regard to the above sketch. According to the plaintiff, there was a road in which obstructions were created by the defendant by planting coconut trees at the points 'Al' and 'A2' and also by construing a fence V. The mandatory part of the injunction was to remove the obstructions to road 'R' at' Al' and ' A2' and also the fence 'Fand by filling up all the coconut plant pits. The prohibitory injunction was to restrain the defendant from obstructing road 'R' mentioned in the eye-sketch. The trial court passed the following decree, which was confirmed in the appeal and the second appeal: "(a) That the defendant are hereby directed to remove the obstruction to the road VR' at Al and A2 and fence ^F' and to restore the road V R' mentioned in the plaint eye-sketch to its original condition by removing the coconut plants and by filling the coconut plant pits within one month, ie.,by30.11.89; (b) That if the defendant fails to do the work as directed, plaintiffs be at liberty to have the said work done through an officer of this Court at the expense of the defendant". since the defendant did not comply with the mandatory directions, E.P. 303 of 1990 was filed. In that E.P. the plaintiffs-decree holders filed the present application, E. A. 8 of 1998. This application was necessitated because as per the E.P. when the Amin went to clear off the obstructions, he was not able to identify the property on the basis of the eye-sketch produced along with the plaint and the decree. Hence, the warrant was returned. The present E.A. was filed to direct the Amin to identify the property on the basis of Ext. C2 plan, which was marked on the trial side. This application was opposed by the present petitioner. Hence, the warrant was returned. The present E.A. was filed to direct the Amin to identify the property on the basis of Ext. C2 plan, which was marked on the trial side. This application was opposed by the present petitioner. The contention taken by the petitioner was that according to the decree this property is to be located on the basis of the eye-sketch. If the property cannot be identified on the basis of the eye-sketch, the proper remedy for the decree holders is to apply for an amendment of the decree substituting Ext. C2 plan in the place of the eye-sketch. The Court below after hearing both the parties rejected the objections raised by the judgment debtor. It directed the Amin to identify the property and remove the obstructions on the basis of Ext. C2 plan. It is against the above order that the present revision is filed. 2. Learned counsel for the petitioner sri. D. Krishna Prasad submitted that his client has no objection in executing the decree in its present form. According to him, the decree refers only the eye-sketch and if property is not identified as per the eye-sketch, then the decree becomes unexcitable. He further contended that even if it can be accepted that property can be identified on the basis of Ext. C2 plan, the Court below was not right in directing the Amin to remove the obstructions on the basis of Ext. C2 plan without he being satisfied as to the exact nature of the property. 3. sri. M.C. Sen, the learned counsel for the respondents submitted that it is true that the decree mentions about the eye-sketch. But, the eye-sketch does not contain any measurements. In the suit itself a Commissioner was appointed to identify the road and the obstructions created to the road. These were identified on the basis of Ext. C2 plan. As a matter of fact, the eye-sketch mentioned in the decree has not been marked in the suit. He contended that the executing Court is well within its power to take the measurements on behalf of Ext. C2 plan in order to identify the road and the obstructions. He also stressed on the power of the executing Court to construe a decree and also rely the documents produced, ie, the plan, etc., for the purpose of construing the decree. C2 plan in order to identify the road and the obstructions. He also stressed on the power of the executing Court to construe a decree and also rely the documents produced, ie, the plan, etc., for the purpose of construing the decree. He further submitted that let the Amin first identify the road and the obstructions. The order for removal of the obstruction need be passed only after hearing the petitioner with regard to his objections to the Amin's report. 4. After hearing both parties, l am of the view that there is no substance in the argument of the petitioner. It is true that the decree mentions only about the eye-sketch and it will not be possible for the executing Court to execute the decree on the basis of the eye-sketch. In such circumstances is the executing Court without any power to execute the decree? It is true that executing Court cannot go behind the decree. But, it has been consistently held that the executing Court can construe a decree if there is any ambiguity. In such circumstances, the Court can look into the judgment and also the pleadings. In the decision reported in Topanmal Chhotamal v. M/s. Kundomal Gangaram & Ors., AIR 1960 sC 338, the power of the executing Court came into consideration. In that case, the Court was construing a decree, which contained two parts: (i) "I decree the plaintiff s suit for Rupees 12,140-1-0 (twelve thousand one hundred and forty and anna one only) with costs and future and pendente lite interest at 3 P.C. p a. against defendant No.1 ; and (ii) "any such property of the firm M/s. Kundomal Gangaram as may be found in the hands of defendants 2 to 6". The supreme Court held as follows:- "To avoid tautology, it is therefore, necessary to read the decree as a whole to fit in the two parts in an integrated scheme. so construed, the reasonable interpretation would be that the first part gave a decree against the firm, and the second part confined its operation to the assets of the firm in the hands of its partners. At the worst the decree can be said to be ambiguous. In such a case, it is the duty of the executing Court to construe the decree. At the worst the decree can be said to be ambiguous. In such a case, it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment." Their Lordships followed the decision of the Privy Council in Manakchand v. Manoharlal, AIR 1994 PC 46. The supreme Court then relied on the decision of the Madras High Court in sahib Thambi Marakayar v. HamidMarakayar, ILR 36 Mad 414. Thus, Their Lordships distinguished the interpretation of the decree from'going behind the decree'. It was held that though the executing Court cannot go behind a decree, if the decree is ambiguous, it can construe the decree. In F.H. Wilson & Ann v. Nathmull, AIR 1930 Madras 458, it has been held as follows: "Whenever it is possible to construe a decree in two ways, one way consistent with the judgment and the other inconsistent with it, it is the duty of the Court to construe it in a way consistent with the judgment". Another case cited was the case in Kali saran v. Hari Ram, AIR 1958 Punjab 13. In that case, there was a conflict with regard to the description of the property in a compromise deed and the decree based on the said compromise. The question was as to which would prevail. The Court then relied upon the well-known principle that if there is a difference between the boundaries and the area, the land actually comprised within the boundaries will prevail. On that basis it construed the decree. 5. It will not be possible to identify the road and the obstructions on the basis of the eye-sketch. If the decree is construed only on the basis of the eye-sketch, then it will not be possible to execute the decree. If we then peruse the judgment, it can be found that the court itself identified the property on the basis of the Commissioner's report and plan, ie, Ext. Cl is the report and Ext. C2 is the plan. In this context, it is relevant to go through paragraphs 24, 25, 26 and 27 of the judgment of the trial court. If we then peruse the judgment, it can be found that the court itself identified the property on the basis of the Commissioner's report and plan, ie, Ext. Cl is the report and Ext. C2 is the plan. In this context, it is relevant to go through paragraphs 24, 25, 26 and 27 of the judgment of the trial court. In paragraph 24 of the judgment, the court held as follows : "The question that requires consideration are whether the plaintiffs have got right over the site marked *R' in the plaint eye-sketch, if so, what is the nature of the right and whether the plaintiffs have got prescriptive ease mentary right to the alleged road claimed by the plaintiffs". In paragraph 25„ 26 and 27, in fixing up the road and the obstructions, it is found that the court relied on Ext. C2 plan. It is seen from the judgment that the road 'R' is more than 33 years old. The entire identification is based on the markings in Ext. C2. It is also relevant to quote the following passage from the judgment: "Under point No.1 the Commissioner in Ext. Cl report says that the existence of the road xR' upto Al and beyond A2 running upto *G' the freshness of the obstruction, the fresh evidence of digging in the blue shaded portion etc. are pointers to the fact that the road xR' was recently obstructed at Al and A2 and that prior to that, the road was running without break from Yethadka-Pallathadka road upto the gate "G. Thus, on the basis of Ext. C2 plan that the trial court identified the road as well as the obstructions. True, the court has passed the decree without appending Ext. C2 plan. But, that does not mean that the executing Court is powerless to construe the decree and identify the property on the basis of Ext. C2 plan. In the above view of the matter, I agree with the Court below that it has power to direct the Arnin to identify the property on the basis of Ext. C2 plan. But, the executing Court has directed the Amin to identify the property and remove the obstructions. The counsel for the petitioner has taken serious objection to the later portion of the direction. The Court has to first get the report of the Amin regarding the identification of the property. C2 plan. But, the executing Court has directed the Amin to identify the property and remove the obstructions. The counsel for the petitioner has taken serious objection to the later portion of the direction. The Court has to first get the report of the Amin regarding the identification of the property. It is only after considering the above report and after hearing both parties the Court has to direct the removal of the obstructions. Hence, the order of the Court below is modified to the above extent. The Amin will be directed to file a report after identifying the property on the basis of Ext. C2 plan. Then the Court will hear both the parties and pass orders for removal of the obstructions. The C.R.P. is disposed of as above.