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2008 DIGILAW 663 (AP)

Gurram Somamma v. Nalamasa Yashoda

2008-08-22

L.NARASIMHA REDDY

body2008
JUDGMENT: The petitioners filed O.S.No.13 of 2001 in the Court of Senior Civil Judge, Mahabubabad, for the relief of declaration of title and perpetual injunction against the respondents. The suit was decreed on 06-12-2004. The decree appears to have become final. Petitioners filed E.P.No.23 of 2005, under Order XXI Rule 32 (5) of C.P.C., before the same Court, for execution of the decree. They prayed, that the decree be executed by directing the bailiff of the Court to peg mark the suit schedule land, admeasuring Ac.0.25 guntas in Sy.No.162 of Velikatte Village, of Thorrur Mandal, and to declare, by beat of tom tom in the village, that the petitioners are the owners of the property. The Executing Court dismissed the E.P. through order dated 03-05-2008. Hence, this C.R.P. 2. Sri M. Rama Rao, learned counsel for the petitioners, submits that the decree in favour of the petitioners is for declaration of title and perpetual injunction; in respect of 25 guntas of land in Sy.No.162, and in view of the fact that the said survey number is large, in extent, the petitioners approached the Executing Court with a prayer to peg mark the suit land, and to declare their ownership by beat of tom tom. He contends that such a course is permissible under C.P.C., and that the Executing Court had dismissed the E.P., on a wrong notion. He submits that the petitioners never prayed for delivery of possession, and the observation of the Executing Court, in this context, is contrary to record. 3. The petitioners prayed for a decree, for declaration of title and perpetual injunction, in respect of Ac.0.25 guntas of land in Sy.No.162 of Velikatte Village, of Thorrur Mandal, Warangal District. A decree was passed and it has become final. The petitioners prayed for execution of the decree by taking two steps, viz., peg marking, or demarcation of the land; and making an announcement in the village, by beat of tom tom, that they are the owners of the suit land. It needs to be seen whether the request made by the petitioners can be acceded to. 4. Order XXI C.P.C., prescribed various methods, for execution of different kinds of decrees. By its very nature, a decree for declaration of title, hardly needs any execution. It is a declaration in rem. Other incidental or ancillary rights flow from such declaration. It is the latter, that become executable. 4. Order XXI C.P.C., prescribed various methods, for execution of different kinds of decrees. By its very nature, a decree for declaration of title, hardly needs any execution. It is a declaration in rem. Other incidental or ancillary rights flow from such declaration. It is the latter, that become executable. Independently, or in isolation, a decree for declaration of title is incapable of being executed. When the Trial Court granted a decree of declaration, it is not known as to why the petitioners wanted the announcement of the same, by way of tom tom in the village. No specific provision is mentioned, in support of this plea. 5. The second limb of the relief, claimed by the petitioners, in their E.P., is the peg marking, or demarcation of the suit schedule property. This is said to be in relation to the decree for perpetual injunction. Petitioners state that there is some uncertainty as to the location of the suit schedule property of Ac.0.25 guntas, and peg marking of the same would render the decree effective. Here again, the course of action, prayed for by the petitioners, is not referred to, any specific provision, except Rule 32 (5). 6. Rule 32 of Order XXI C.P.C. prescribes the procedure, to be followed for execution of the decrees, for specific performance, restitution of conjugal rights or decree for injunction. Sub-rule (1) thereof, mandates that, where a decree for injunction is disobeyed, by a judgment-debtor, it can be enforced by detention of the judgment-debtor, in civil prison, or by attachment of his property, or, by both. The tenor of the pleading of the petitioners in the E.P. does not suggest, that any complaint was made, about the disobedience of the decree by the judgment-debtors. 7. The tenor of the pleading of the petitioners in the E.P. does not suggest, that any complaint was made, about the disobedience of the decree by the judgment-debtors. 7. Sub-rule (5) of Rule 32 of Order XXI reads as under: "Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree". 8. The steps suggested in this provision are, in lieu of, or in addition to, the other processes of enforcement of a decree. Though the manner, in which the decree can be executed, under this provision, may be different from the ordinary ones, the basis for invocation would be one and the same. It is only when it is complained that the decree, for perpetual injunction, is violated, that the occasion to invoke sub-rule (1), or (5) of Rule 32 of Order XXI would arise. Naturally, the basis for filing an E.P., in matters of this nature, can be, only when the judgment debtors have tried to interfere with the possession of the suit schedule property, despite the decree for perpetual injunction. It has already been pointed out that, the petitioners never complained, that the judgment-debtors have interfered with their possession. 9. The fixation of boundaries, or peg marking, as one may choose to describe it; of the suit schedule property, is not, part of the duty of the Executing Court. A remote possibility for such a course may exist, in the event of the decree itself being for demarcation of the land, through the medium of the Court. Even where a decree is for delivery of possession, there must not exist any uncertainty or dispute, about the identity or boundaries of the property, to be delivered. A remote possibility for such a course may exist, in the event of the decree itself being for demarcation of the land, through the medium of the Court. Even where a decree is for delivery of possession, there must not exist any uncertainty or dispute, about the identity or boundaries of the property, to be delivered. C.P.C. does not provide for demarcation of the land by the Court, either in case of a decree for delivery of possession, or where an item of property is attached, to recover the suit amount. When such is the case, in respect of decrees, under which the Court would be under obligation to handle the properties, the question of requiring the Executing Court, to peg mark or demarcate a land, for execution of a decree, for declaration of title, much less the one, for perpetual injunction, does not arise. When the relief in the form of mere declaration, or coupled with the one, of perpetual injunction, it is presumed that the decree-holder is in possession of a definite extent of property, with known, and undisputed boundaries. Viewed from any angle, the course of action, adopted by the petitioners cannot be countenanced. 10. The record discloses that an Advocate-Commissioner was appointed for measuring the land. Such a step was totally outside the scope of the decree, and power of the Executing Court. 11. Learned counsel for the petitioners places reliance upon the judgment of a Delhi High Court in Shashi Kapur v. O.P. Gogne1. That was a case, in relation to the enforcement of an order of temporary injunction. When the defendant, in the suit, was persistently disobeying the order of temporary injunction, the Trial Court appointed a Commissioner, in exercise of its power, under Section 151 C.P.C., to ensure compliance with the order. The Delhi High Court held that, it is competent for a Civil Court to take such a step, in exercise of its residuary powers under Section 151 C.P.C. Reference was also made to Section 75 of C.P.C. The judgment of the Delhi High Court has, absolutely no application, to the facts of this case. 12. The C.R.P. is accordingly dismissed. There shall be no order as to costs.