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2002 DIGILAW 216 (HP)

RAJ KUMARI v. SURESH KUMAR

2002-08-07

KAMLESH SHARMA

body2002
JUDGMENT Ms. Kamlesh Sharma, J.—The petitioners-decree holders are aggrieved by the order dated 16.6.1999 passed by the Sub Judge 1st Class, Palampur, District Kangra, (hereinafter called the Executing Court) whereby the objections filed by the judgment debtors have been allowed and the execution filed against the defendants-judgment debtors has been dismissed as inexecutable. According to the Executing Court, the decree under execution is only a declaratory decree; whereas the decree-holders intend to execute it as a decree for mandatory injunction to remove and demolish the shop over the path in question. 2. This Court has heard the learned Counsel for the parties and gone through the record. 3. This case has a chequered history. The decree holders had filed a Civil Suit No. 242/1974:381/1970 to the following effect: "Suit for declaration to the effect that the plaintiffs have a prescriptive right of easement of passage over the path defined in the annexed plan as running along the line A- A B C J on its right side while proceeding from Palampur Bazar, i.e., from East to West, 11 feet in width, and curvilinear in shape at the bend where its width is 13-1/2 feet and where it turns north south and runs over the area marked F G H I, situate within the limits of Municipal Committee Palampur and as a consequential relief for mandatory injunction for an order of removal and demolition of the building over the portion of the path marked as ABE and for the removal of the barbed wire fencing over the portion of the path, the area marked as BCDE and for restoration of the path in its original state and restraining the defendants from interfering with the use of the path by the plaintiffs and from making further constructions or alterations or encroachments in future." 4. The Sub Judge 1st Class (I), Palampur, District Kangra decreed the suit on 31.3.1990 to the following effect: "20................it is hereby declared that the plaintiffs have a prescriptive right of easement over the disputed path marked as A ABCJ in the plan annexed with the plaint while proceeding from Palampur bazar and at the bend where the building of Rai Bahadur Jodha Mai is situated, its width is 10 feet and the plaintiffs shall be entitled for the removal and demolition of the portion of the shop over a portion of the path marked as ABE in the plan annexed with the plaint and also removal of any barbed wire to the extent that the width of the path at the bend in front of the building of Rai Bahadur Jodha Mai remains 10 feet and further the defendants are restrained from interfering with the path or making any further encroachment or alteration in the said path in future. Keeping in view the facts and circumstances of the case, the parties are left to bear their own costs....." 5. The decree of the Sub Judge was affirmed by the District Judge on 11.3.1992 and by this Court in RSA No. 222 of 1992 on 30.6.1994. It is not in dispute that the S.L.P. filed against the judgment of this Court was also dismissed and the decree has become final between the parties. 6. The decree holders filed execution petition No. 61 of 1995 praying for the assistance of the Court to the following effect: "Removal and demolition of the portion of shop over a portion of path marked as ABE in the plan annexed and removal of any barbed wire to the extent of width of the path at the bend in front of the building of Rai Bahador Jodha Mai remains 10 feet and recovery of cost by attaching and selling the property of JD". 7. The judgement debtors filed objections under Section 47 CPC, inter alia, raising preliminary objection that the decree being only declaratory, is inexecutable. The decree holder filed reply to the objections. Ultimately, the Executing Court dismissed the execution petition by the impugned order. 8. Learned counsel for the petitioners has urged that the Executing Court has acted in the exercise of its jurisdiction illegally in dismissing the execution petition as inexecutable. The decree holder filed reply to the objections. Ultimately, the Executing Court dismissed the execution petition by the impugned order. 8. Learned counsel for the petitioners has urged that the Executing Court has acted in the exercise of its jurisdiction illegally in dismissing the execution petition as inexecutable. According to learned counsel, firstly the decree under execution is not declaratory and secondly, even if it is declaratory, the decree for mandatory injunction is implicit in it. Had the decree under execution been inexecutable, there was no occasion for the judgment debtors to assail it upto the Supreme Court. It is also argued that had the Executing Court construed and interpreted the decree in its right perspective, it would not have dismissed it as inexecutable. The executing Court has failed to examine the records of the suit, in order to find out the intention of the Court which has passed the decree. The learned counsel has further urged that if the decree was not happily worded and clear directions were not given to the defendants-judgment debtors, the plaintiffs-decree holders should not suffer for the lapse of the Court. 9. On the other hand, learned counsel for the judgment debtors have supported the impugned order and have argued that in the absence of any mandatory injunction directing the judgement debtors to remove and demolish the portion of the shop over the path in question, the Executing Court cannot render any assistance to the decree holders. According to the learned counsel, the decree under execution is only declaratory and the decree holders could get it corrected within a reasonable time or in the alternative they may file fresh suit seeking mandatory injunction on the basis of declaratory decree passed in their favour. It is further argued by the learned counsel for the judgment debtors that under the garb of construing or interpreting or giving clarity to the decree under execution, the Executing Court cannot go behind the decree and create a new decree which was neither intended nor passed by the Sub Judge. 10. Before considering the relevant contentions of the learned counsel for the parties, this Court would refer to the law laid down by the Supreme Court in respect of the scope of the Executing Court. 10. Before considering the relevant contentions of the learned counsel for the parties, this Court would refer to the law laid down by the Supreme Court in respect of the scope of the Executing Court. In Jai Narain Ram Lundia v. Kedar Nath Khetan and others, 1956 SC 359, the learned Judges while dealing with the execution of a decree for specific performance and in reference to Order 21 Rule 32(1) CPC have held in paragraph 23: "The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing Court cannot consider this question who can? The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of tne decree and so, under Section 47, Civil Procedure Code, it can only be determined by the Court executing the decree." (Emphasis supplied) 11. In Topanmal Chhotamal v. M/s. Kundomal Gangaram and others, AIR 1960 Supreme Court 388, it is held in paragraphs 4 and 5 that if a decree is ambiguous, it is the duty of the Executing Court to construe and interpret it by looking into the pleadings and the judgment. The principles laid down in the above judgments were reiterated in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, AIR 1970 Supreme Court 1475, by further clarifying that since the Executing Court cannot go behind the decree, it must take the decree according to its tenor and it cannot entertain an objection that the decree was incorrect in law or on facts. Unless it is set aside by an appropriate proceeding in appeal, a decree even if it be erroneous, it is binding between the parties. 12. In Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another, AIR 1972 Supreme Court 1371, the duty of the Executing Court is given in paragraph 19. It is: "It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. It is: "It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate case, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree, the Courts often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the executing Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution Court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents.....................................When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They have merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them." (Emphasis supplied) 13. In its another judgment in Rameshwar Dass Gupta v. State of U.P. and another, (1996) 5 Supreme Court Cases 728, the Supreme Court has held that if the Executing Court has exceeded its jurisdiction the order passed by it is without jurisdiction and is thereby void order then it becomes the duty of the High Court to correct the same in exercise of its revisional jurisdiction under Section 115 CPC. 14. 14. After examining the case in hand in the light of the law laid down by the Supreme Court, this Court is of the view that the Executing Court has failed to exercise its jurisdiction in construing and interpreting the decree in its right perspective. From the perusal of the heading and the relief clause of the plaint, it is clear that besides seeking declaration that they have a prescriptive right of easement over the disputed path, the plaintiffs had also sought the removal and demolition of shop over a portion of path marked as ABE in the plan annexed with the plaint and removal of barbed wire to the extent that width of the path at the bend in front of the building of Rai Bahadur Jodha Mai remains 10 feet, which could be granted to the plaintiffs only by issuing mandatory injunction in their favour. The plaintiffs had further sought the decree for permanent prohibitory injunction restraining the defendants from interfering in the path having 10 feet width or making any further encroachment or alteration over it which was a consequential relief of decree for declaration and mandatory injunction. 15. Keeping in mind the tenor of the heading and relief clause of the plaint, there remains no doubt that by declaring that the plaintiffs have a prescriptive right of easement over the path in question and they are entitled to remove and demolish the portion of the shop over a portion of path marked ABE in the plan annexed with the plaint and also to remove the barbed wire to the extent that the width of the path at the bend in front of the building of Rai Bahadur Jodha Mai remains 10 feet, the Sub Judge was in fact issuing mandatory injunction to the effect that the obstruction on the path will be removed and portion of the shop will be demolished at the instance of the plaintiffs enabling them to enjoy their easementary right over 10 feet wide path. If this portion of the decree is construed as only a declaration, the consequential decree for permanent prohibitory injunction will be redundant. 16. In other words, only after removal and demolition of the portion of the shop, the path will be 10 feet wide on all its points and only then the purpose of passing the decree will be obtained. If this portion of the decree is construed as only a declaration, the consequential decree for permanent prohibitory injunction will be redundant. 16. In other words, only after removal and demolition of the portion of the shop, the path will be 10 feet wide on all its points and only then the purpose of passing the decree will be obtained. No doubt the decree is not happily worded and at no point of time either party pointed it out that in so many words specific command has not been given to the defendants to remove and demolish the portion of the shop creating obstruction at points marked ABE in the plan annexed with the plaint and also to remove the barbed wire so that the width of the path remains 10 feet wide, but it is not of much consequence. In fact, it is in the cases like the one in hand that the Executing Court is required to exercise its powers to interpret the decree in its right perspective and remove the ambiguity, if any, after going through the pleadings and the other records of the suit. If the view taken by the Executing Court is upheld that the decree under execution is only declaratory and the plaintiffs have to file another suit for mandatory injunction, it will be mockery of the judicial proceedings, which are not being considered final between the parties even after the affirmation of the decree under execution upto the Supreme Court. 17. The observations made by the learned Judges of various High Courts in Suraj Bakhsh v. Ganga Bakhsh and others, A.I.R. 1927 Oudh 457; B.K. Thapar and others v. Sudhir Kumar and others, A.I.R. 1966 Jammu and Kashmir 18; Raghunath Rai v. P. Sahai and another, 1968 Cri. L.J. 704 and Parkash Chand v. S.S. Grezval and others, 1975 Cri. L.J. 679, are of no assistance for deciding the present case which has peculiar facts and circumstances, as discussed hereinabove. Moreover, the findings in those judgments are in the facts and circumstances of those cases. 18. The result of above discussion is that there is merit in this revision petition and it is allowed. The impugned order dated 16.6.1999 passed by the Executing Court is set aside, with the result that objections under Section 47 CPC filed by the judgment debtors are dismissed. 18. The result of above discussion is that there is merit in this revision petition and it is allowed. The impugned order dated 16.6.1999 passed by the Executing Court is set aside, with the result that objections under Section 47 CPC filed by the judgment debtors are dismissed. The Executing Court is directed to proceed with the execution in accordance with law. The records be sent back to the Executing Court immediately. The parties are directed *to appear before the Executing Court on 26.8.2002. Costs easy. Appeal allowed.