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Andhra High Court · body

2008 DIGILAW 960 (AP)

Ranga Reddy v. M. Suryanarayana Reddy

2008-11-11

G.ROHINI

body2008
ORDER: This Civil Revision Petition is directed against the order dated. 14-08-2008 in E.P.No.32 of 2003 in O.S.No.32 of 1985 on the file of the Court of the Junior Civil Judge, Penukonda. The revision petitioners are the Judgment Debtors 1 to 6, 9 and 11 to14 whereas the 1st respondent herein is the Decree Holder in O.S.No.32 of 1985. The respondents 2 to 4 herein are the Judgment Debtors 7, 8 and 9. The facts in brief are as under: The 1st respondent herein filed O.S.No.32 of 1985 for declaration of his right of easement to go through the cart track in Sy.Nos.6-2, 6-1, 5-1, 5-2, 2 and 4-1 of Vemuletipalli village shown as A, B, C, D, E in the sketch appended to the plaint. The plaintiff also sought a direction for restoration of the said cart track by the defendants and if they fail to do so, to restore the same through the Court at the cost of the defendants. The defendants in their written statement denied the existence of any cart track. It was also claimed that they raised a Neem and Tamarind trees towards the western side of Sy.No.5-1 which were covered by a fence. The trial court on an appreciation of the evidence adduced by both the parties decreed the suit with costs by judgment dated.10-08-1998. The Appeal preferred by the defendants being A.S.No.13 of 1998 on the file of the Court of Senior Civil Judge, Penukonda was dismissed and even S.A.No.1067 of 2002 on the file of this Court ended in dismissal, thus confirming the judgment and decree of the trial court in O.S.No.32 of 1985. Thereafter the Decree-holder - 1st respondent herein filed E.P.No.32 of 2003 in the Court of the Junior Civil Judge, Penukonda for restoration of cart track. The judgment-debtors/Revision petitioners contested the Execution Proceedings contending that the decree was not executable inasmuch as no relief was sought or granted in the decree for removal of the trees existing on the suit schedule cart track. However, the court below by order dated.14-08-2008 allowed E.P.No.32 of 2003 directing the Judgment-debtors to restore the cart track within one month on or before 16-09-2008 failing which the same shall be restored through Court on payment of process. Challenging the said order, the present Civil Revision Petition is filed. I have heard the learned counsel for both the parties and perused the material on record. Challenging the said order, the present Civil Revision Petition is filed. I have heard the learned counsel for both the parties and perused the material on record. As could be seen, the execution petition was opposed by the judgment-debtors / Revision petitioners on the ground that the decree was in-executable in the absence of a mandatory injunction for removal of trees standing on the suit schedule cart track. While referring to the report of the Advocate- Commissioner filed before the trial Court which revealed the existence of trees, it is contended by them that in the absence of a direction for removal of the said trees, the decree is in-executable. The Court below rejected the said objections and allowed the execution petition. The question that arises for consideration is whether the Court below committed an error in allowing execution petition for restoration of cart-track by directing removal of the trees. The law is well-settled that an executing Court cannot go beyond the decree or refuse execution except where the decree is passed by a Court lacking inherent jurisdiction or is a nullity. In the instant case, the decree was admittedly passed by a Court of competent jurisdiction. It is true that there was no specific direction in the decree for removal of trees. However, on such ground the decree passed by a Court of competent jurisdiction cannot be termed as a nullity and in-executable. The absence of a direction for removal of trees at the most is an irregularity which is curable even at the stage of execution. It is also relevant to note that the decree in O.S.No.32 of 1985 for restoration of suit schedule cart-track attained a finality thus making the judgment-debtors / Revision petitioners liable for restoration of the suit schedule cart-track which means and includes removal of the trees or any other obstructions and bring it to its original shape. Such a right accrued to the decree-holder which became final cannot be ignored by the executing Court and therefore the execution cannot be refused. Such a right accrued to the decree-holder which became final cannot be ignored by the executing Court and therefore the execution cannot be refused. Once a decree is granted in favour of the plaintiff upholding his easementary right in respect of the suit schedule cart-track and the same is upheld in the First Appeal and Second Appeal, the judgment-debtors / Revision Petitioners are bound by the same and are liable to restore the cart-track notwithstanding the existence of the trees even by the date of the suit. As a matter of fact, the existence of trees existing even by the date of the suit made it all the more clear that the decree for restoration of cart-track includes removal of trees. However, the learned counsel for the petitioner while relying upon a decision of the Supreme Court in Gurdev Singh Vs. Narain Singh1 contended that the executing Court ought not to have directed removal of the trees since the decree did not provide for the same. The decision in Gurdev Singh's case (1 supra) arises out of a decree for permanent injunction in execution of which the decree-holder prayed for removal of the trees from the land in question. Since there was no material to show that the trees in question were in existence prior to passing of the decree and since the decree did not speak of removal of any tree which was already planted, it was held by the Supreme Court that the executing Court could not have directed the judgment-debtor to remove the trees. Accordingly the matter was remanded to the executing Court for determination of the question as to whether the trees were in existence prior to passing of the decree or not. The facts in the instant case are entirely different. As noticed above, this is a case where the plaintiff's easementary right in respect of the plaint schedule cart-track was upheld and the decree for restoration of cart-track was confirmed in the First Appeal and also Second Appeal. Even according to the judgment-debtors / Revision petitioners the trees in question are existing even by the date of the suit. Hence, it is clear that the decree for restoration of cart-track includes removal of the trees existing on the said cart-track. In the circumstances, the Court below cannot be said to have committed any error in directing restoration of cart-track by removing the trees. Hence, it is clear that the decree for restoration of cart-track includes removal of the trees existing on the said cart-track. In the circumstances, the Court below cannot be said to have committed any error in directing restoration of cart-track by removing the trees. The Civil Revision Petition is devoid of any merit and the same is accordingly dismissed. No costs.