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2001 DIGILAW 1129 (AP)

Kothakota Vaikunta Rao v. Zilla Parishad, Srikakulam

2001-09-27

L.NARASIMHA REDDY

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L. NARASIMHA REDDY, J. ( 1 ) THE sole respondent Zilla Parishad, Srikakulam, filed OS No. 5/59 before the District Munsif, Palasa, for a mandatory injunction for removal of certain structures said to be existing on the land belonging to it. The suit was decreed and the decree became final. The respondent filed EP No. 54/73 for execution of the decree. One after the other steps have been taken for identification of the items in the decree and for execution of the same. However, it emerges that the attempts of the executing Court to ascertain the items were not fruitful. The Court has appointed more than one Commissioner in this regard. The Advocate-Commissioner who has been appointed in EA No. 2/93 for determination of the encroachments made by the judgment-debtors also reiterated that the commission work couldn t be executed, as the measurements of the items are not available on record. ( 2 ) AFTER taking into account all the steps that have been taken, the executing Court had arrived at a conclusion that the EP has become unexecutable. It has also recorded a finding that the suit itself being more than 40 years old, the decree as well as some original records is not available in the Court. The executing Court had proceeded further and directed the decree holders to approach the respondents in WP No. 25484/97 for demolition and removal of the construction made by the judgment-debtors. This order is passed in EP No. 54/93 dated 31-3-1993 and the same is challenged in this CRP. ( 3 ) THOUGH the respondent is served with notice, it has not chosen to appear either in person or through an advocate. Sri N. Harendernath Reddy, appearing for Sri Ella Reddy, Counsel for the petitioners, submits that once the executing Court has arrived at a conclusion that the decree is not executable, it ought not to have proceeded further and issued directions. Any direction given by the executing Court, as was done in the present case, would virtually be amounting to expanding the scope of the decree. The learned Counsel, therefore, submits that the order under revision, insofar as it directs the respondents to approach certain authorities so as to enable them to demolish the structures, cannot be sustained. Any direction given by the executing Court, as was done in the present case, would virtually be amounting to expanding the scope of the decree. The learned Counsel, therefore, submits that the order under revision, insofar as it directs the respondents to approach certain authorities so as to enable them to demolish the structures, cannot be sustained. ( 4 ) IT is evident from the record that the executing Court found that the main decree itself was not available on record. One after the other Commissioners expressed their inability to identify the suit schedule property on account of lack of particulars. Under these circumstances, the executing Court has rightly arrived at a conclusion that the decree is not executable. The only alternative for the executing Court under these circumstances was to close or dismiss the EP. ( 5 ) THE directions, which the executing Court issued in its order under revision, virtually amount to expanding and widening the scope of the decree itself. It is well established that an executing Court cannot go beyond the terms of the decree. When the directions contained in the order of the executing Court cannot be traced in the decree, they are liable to be held as being without jurisdiction. The executing Court, under no circumstances, can go beyond the terms of the decree, which it is executing. ( 6 ) UNDER the above circumstances, the order under revision to the extent it issues directions to the respondent to approach certain authorities for demolition of the structures on its properties, is set aside. The CRP is accordingly allowed, but in the circumstances of the case, there shall be no order as to costs.