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Madhya Pradesh High Court · body

2002 DIGILAW 177 (MP)

Anwar Sheikh v. Keshavrao

2002-02-14

S.B.SAKRIKAR

body2002
JUDGMENT The applicant/judgment-debtors, have directed this revision against the order dated 5.2.2001 passed by I Civil Judge, Class-II, Dewas in civil execution case No. 12A/96-2000 thereby directing removal of the disputed wall in compliance of the decree of mandatory injunction dated 30.3.1998 passed in favour of the non-applicant-decree holder ( defendant). On perusal of the judgment and the decree dated 30.3.1998 passed by the trial Court in civil suit case No. 12A/96, it emerged that by the impugned judgment, the plaintiff's suit for declaration and permanent injunction with regard to the disputed wall was dismissed. However, a counter-claim filed on behalf of the non-applicant-decree holder, was allowed and a decree of mandatory injunction directing applicant/judgment debtor to make such arrangement in the disputed wall so that the rainy water in the courtyard of the house of respondent/decree holder may not accumulate. The Court also directed that if such arrangement is not made then the wall in dispute be removed so that the water may not accumulate in the courtyard of the respondent's house. The respondent/decree holder filed an execution of the afresaid decree in the· Court below, making a complaint that, if applicant has not made arrangement for draining of the water accumulated in the courtyard of the house and prayed that in terms of the decree the wall in dispute may be directed to be removed. The learned executing Court on considering the submissions of both the parties by impugned order directed that the wall in dispute be removed within a period of 15 days, so that the rainy water may not accumulate in the courtyard of the house of the non-applicant/decree holder. Aggrieved by the said order of the Court, the applicant has filed this revision. The contention of learned counsel for the petitioner is that after the decree of the trial Court, confirmed in appeal, the applicant has installed one cement pipe in the disputed wall and made sufficient arrangement for draining of the water which may accumulate in the courtyard of the house owned by the respondent and has complied with the first part of the decree. As against this, the contention of learned counsel for the respondent is that the arrangement alleged is not sufficient and the rainy water is still accumulating in the courtyard of the house of the respondent. As against this, the contention of learned counsel for the respondent is that the arrangement alleged is not sufficient and the rainy water is still accumulating in the courtyard of the house of the respondent. On the proposal of learned counsel for the parties, Shri Kunwar Ranjit Singh Rathore, a senior advocate of Dawas was appointed Commissioner for inspection of the spot and report by the order of this Court dated 18.10.2001. In compliance of the said order Commissioner Shri Kunwar Ranjit Singh Rathore inspected the spot in presence of the parties and submitted his detailed report dated 28.10.2001. On perusal of the said report, it emerged that in compliance of the decree passed by trial Court, the applicant/judgment debtor, has installed one cement pipe in the disputed wall, but the opening of the said cement pipe was found closed from the side of the non-applicant/decree holder, and therefore the water was not flowing through the said pipe. In the report it is also mentioned that the opening of the said pipe was cleaned in presence of the parties and thereafter it is found that if the opening of the said pipe is not obstructed then the water shall not accumulate in the courtyard of the house owned by the respondent/decree holder. In view of the aforesaid facts, I find that the applicant/judgment debtor in compliance of the decree passed by the trial Court has made arrangement for draining of the water which may accumulate in the house of the courtyard owned by the respondent/decree holder. As such, the directions given in the second part of the decree are not necessary to be complied with. The learned executing Court without considering the facts of the case and without making sufficient enquiry has committed an error in passing impugned order directing removal of the disputed wall within a period of 15 days. As a result of foregoing discussions, this revision petition filed on behalf of the applicant/judgment debtor deserves to be allowed and it is accordingly allowed. The impugned order of the executing Court directing removal of the disputed wall within a period of 15 days stands set-aside and it is held that as the first part of the decree is duly complied with by the applicant/judgment debtor, the execution filed on behalf of the non-applicant/decree holder is directed to be disposed of. No order as to costs. No order as to costs. CC within 7 days.