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2011 DIGILAW 1397 (MAD)

S. Shanmugasundaram v. S. Murugamanickam

2011-03-11

T.S.SIVAGNANAM

body2011
Judgment :- 1. This Revision has been filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the "CPC") against the fair and decreetal order dated 07.06.1999 made in R.E.A.No.882 of 1993 in R.E.P.No.2 of 1991 on the file of I Additional District Munsif, Salem. 2. The Decree-Holder is the revision petitioner. The petitioner filed the suit in O.S.No.1601 of 1985, for a declaration of the right over a common wall as per the partition deed dated 23.09.1991 and for a mandatory injunction to compel the defendant to construct the wall. The trial Court by its Judgment and decree dated 30.04.1990, directed the construction of the wall as per the plan Exhibit A2 and the cost of such construction to be borne equally and for payment of rent and other reliefs. For better appreciation, the decree granted by the trial Court is extracted as hereunder:- VERNACULAR (TAMIL) PORTION DELETED 3. The petitioner filed R.E.P.No.2 of 1991, to execute such decree. The respondent filed a counter stating that he has underwent a stomach operation and that the petitioner has not complied with the directions in the decree and the petitioner is bound to deposit the rents collected by him to the share of the respondent, as per the decree and this is a condition precedent and therefore, the execution petition is pre-mature. An Advocate Commissioner was appointed, who appears to have visited the suit property on 01.05.1991 and subsequently, on 22.06.1992 and as the suit property was locked, he submitted a memo before the Court dated 30.06.1992, stating that since the suit property was locked, he could not execute the warrant of commission and sought for police aid and permission to break open the lock in the suit property to enable him to execute the warrant. Based on the memo submitted by the Advocate Commissioner, the trial Court issued a direction for break open as well as Police aid. Subsequently, the Commissioner appears to have commenced the construction work on 23.08.1992 and completed the same on 15.06.1993 and the expenditure for the construction was borne by the petitioner and the total sum of Rs.54,040/- was spent. These facts were submitted before Court by the Commissioner in his report dated 06.07.1993. Subsequently, the Commissioner appears to have commenced the construction work on 23.08.1992 and completed the same on 15.06.1993 and the expenditure for the construction was borne by the petitioner and the total sum of Rs.54,040/- was spent. These facts were submitted before Court by the Commissioner in his report dated 06.07.1993. It is seen from the report that the Commissioner had faced certain problems, while executing the warrant of Commission, on account of the trouble given by the respondent. Further, it is seen from the report that the compound wall was constructed to a length of 125 ft, as shown in the plan 'B' filed along with the report and as per the plan, the petitioner gets 1968 sq. ft. and the respondent gets 1775 sq. ft, as per the request and memo of the petitioner, the compound wall has been constructed in the area allotted to the petitioner and the petitioner gets 1835 sq. ft. 4. The petitioner filed his memo of objection to the report submitted by the Commissioner, stating that when the Commissioner was doing his work, the respondent prevented him from removing the existing wall at two places and hence, a deviation was made and as per the plan attached to the decree, the petitioner should get 1965 sq. ft. but after the construction of the wall, the petitioner gets only 1835 sq. ft and he has lost 130 sq. ft. and the respondent, who is entitled to only 1777 sq. ft. has got 1907 sq. ft. and the respondent is bound to compensate the value of 130 sq.ft. at the rate of 1300 per sq. ft. in all claimed Rs.1,69,000/-. Further, the petitioner claimed that for vacating the tenant, he has paid a sum of Rs.40,000/- and the remuneration paid to the Advocate Commissioner has to be paid to him and made a total claim of Rs.2,18,520/-. This petition seeking for a direction to the respondent to pay the petitioner of Rs.2,18,520/-was filed under Section 47 CPC and taken on file as R.E.A.No.882 of 1993. 5. This petition seeking for a direction to the respondent to pay the petitioner of Rs.2,18,520/-was filed under Section 47 CPC and taken on file as R.E.A.No.882 of 1993. 5. The respondent resisted the claim petition by filing a counter affidavit inter alia contending that the petition is not maintainable and the same cannot be entertained under Section 47 CPC, and as there is no decree for the amount claimed by the petitioner, though the Executing Court cannot direct reimbursement of said amount and the petitioner cannot seek for the said amount without payment of Court fee. Further, it is stated that a sum of Rs.40,000/- said to have been paid by the petitioner for vacating his tenant is a voluntary payment made by the petitioner without any concurrence from the respondent and the respondent is not bound to honour such claim. The Executing Court held that in terms of the decree, the petitioner is entitled to recover half the amount spent by him for construction of compound wall including the Commissioner's remuneration and held that the petitioner is entitled to recover a sum of Rs.28,520/- with cost. In respect of the other claim made by the petitioner, the Executing Court held that the scope of the petition under Section 47 is limited and the petitioner is not entitled to any relief. Challenging the said order dated 07.06.1999, the petitioner is before this Court by way of the present Civil Revision petition. 6. The learned counsel appearing for the petitioner submitted that the Court below misdirected itself in rejecting the entire relief sought for by the petitioner and failed to appreciate the scope of Section 47 CPC. The learned counsel further submitted that merely because the petitioner agreed for the construction of the compound wall with different alignment than what was mentioned in the plan attached to the decree, it does not amount to waiver of his right over an extent of 130 sq. ft. This deviation in the construction was on account of the respondent's objections and the loss sustained by the petitioner in this regard and the amounts spent for vacating the tenant could very well to gone into an application under Section 47 CPC and the Court below erred in not granting the entire relief sought for by the petitioner. ft. This deviation in the construction was on account of the respondent's objections and the loss sustained by the petitioner in this regard and the amounts spent for vacating the tenant could very well to gone into an application under Section 47 CPC and the Court below erred in not granting the entire relief sought for by the petitioner. The learned counsel for the petitioner relied on the following decisions, regarding duties of the Executing Court under Section 47 CPC. i) AIR 1933 Madras 825 [Dhanarajagerji v. Rajah Panuganti Parthasarathy Rayanim Varu and others]. ii) AIR 1935 Madras 280 [K.N.Varadaraja Ayyar v. K.N.Parameswara Ayyar] iii) AIR(32) 1945 Madras 179 [T.S.Ramanatha Ayyar v. S.Abdul Salam Sahib] iv) AIR 1965 Patna 427 (FB) [Awadh Bihari Tewari and another v. Sudarsan Rai and others] v) AIR 1967 SC 1193 , [M.P.Shreevastava v. Mrs.Veena] vi) AIR 1972 SC 1371 [Bhavan Vaja v. Solanki Hanuji] vii) AIR 1973 SC 2423 [Harnandrai Badridas v. Debidutt Bhagwati Prasad and others] viii) AIR 1977 Madras 411 [Poomalai v. Ramalingam] 7. Though the notice has been served on the respondent and his name is printed in the cause list, he has not entered appearance through counsel. 8. Heard the learned counsel appearing for the petitioner and perused the materials available on record. 9. The short question which falls for consideration in the present revision is as to whether the Executing Court ought to have entertained the entire claim made by the petitioner under Section 47 CPC and granted the amount of compensation, which the petitioner sought for by stating that on account of construction of the suit compound wall, he has lost an extent of 130 sq. ft and he had to be compensated for the same as well as the amount which was spent by him for vacating the tenant. The Court below held that in terms of the decree, the petitioner is entitled to recover 50% of the cost of construction as well as 50% of the amount paid as remuneration to the Advocate Commissioner and accordingly, granted the relief. In respect of the compensation claimed for the loss of 130 sq. ft. and the amount paid by the petitioner to vacate the tenant, the Executing Court declined to grant the same on the ground that the jurisdiction of the Court under Section 47 CPC was limited. 10. In respect of the compensation claimed for the loss of 130 sq. ft. and the amount paid by the petitioner to vacate the tenant, the Executing Court declined to grant the same on the ground that the jurisdiction of the Court under Section 47 CPC was limited. 10. A Hon'ble Division Bench of this Court in Dhanarajagerji, referred supra, held that when a decree awards a person a certain property, he is entitled to get it in the state, in which, it was when that decree was passed and whether, when the property was delivered, it continued to be in the same state or in the meantime underwent deterioration, is a question to be determined in execution. The Hon'ble Division Bench followed a decision of the Bombay High Court in AIR 1923 Bombay 391, Hari Shridhar Prabhu v. Shakharam Padmanna Magdum, wherein it was held that with regard to the waste committed by the Judgment-Debtor, after decree, was a question arising between the parties relating to the execution, discharge or satisfaction of the decree, must be determined by the Court executing the decree and not by a separate suit. The decision of the Hon'ble Division Bench in the case of Dhanarajagerji, was followed in a subsequent decision rendered a Hon'ble Division Bench of this Court in AIR (32) 1945 Madras 179[T.S.Ramanatha Ayyar v. S.Abdul Salam Sahib]. The learned counsel appearing for the petitioner placed reliance on the Full Bench decision of the Patna High Court in Awadh Bihari Tewari, wherein, the Court held that there should be a liberal construction of the language in the section, so that all questions capable of determination by the Executing Court may be brought before it and the parties should not be driven to the worries and expenses of an independent suit, unless the case is clearly outside the scope and purview of section 47. That the Executing Court has been given exclusive jurisdiction under this section, as to all matters relating to the execution of a decree and as a general rule, a separate suit has been barred. 11. That the Executing Court has been given exclusive jurisdiction under this section, as to all matters relating to the execution of a decree and as a general rule, a separate suit has been barred. 11. Further, in support of the proposition that Section 47 CPC deals with the power of the Court executing the decree and it is the duty of the Executing Court to decide all questions relating to execution, discharge or satisfaction of a decree arising between the parties to the suit in which the decree is passed and shall be determined in the execution proceedings and not by a separate suit, the learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in M.P.Shreevastava v. Mrs.Veena, referred supra, AIR 1972 SC 1371 [Bhavan Vaja v. Solanki Hanuji, AIR 1973 SC 2423 [Harnandrai Badridas v. Debidutt Bhagwati Prasad and others and AIR 1977 Madras 411 [Poomalai v. Ramalingam. 12. There is absolutely no quarrel about the legal proposition consistently laid down by this Court as well as the Hon'ble Supreme Court in the above referred decision and the settled legal principle being that the Executing Court cannot go behind the decree under execution, but the same does not mean that the Court has no duty to find out the true effect of that decree and to construe a decree, it can take into consideration, the pleadings as well as the proceedings leading up to the decree and the Court should not merely look at the decree as it was finally drafted. In the instant case, what is required to be seen is whether the Executing Court should have granted the compensation as prayed for by the petitioner for the loss of an extent of 130 sq. ft. and the amount incurred by him for vacating the tenant. 13. As noticed above, a decree was granted by the trial Court in which, there was a direction to construct a common wall each having 50% share and the cost to be borne equally by the petitioner and the respondent. The decree contained a plan, Exhibit A2 which indicated the alignment of the wall and how it has to pass through the property. This decree is put in execution. As the defendant failed to construct the wall, as per the further direction in the decree, an Advocate Commissioner was appointed to construct the wall. The decree contained a plan, Exhibit A2 which indicated the alignment of the wall and how it has to pass through the property. This decree is put in execution. As the defendant failed to construct the wall, as per the further direction in the decree, an Advocate Commissioner was appointed to construct the wall. There was resistance by the respondent and consequently, the Advocate Commissioner sought police aid and permission to break open the lock of the property. This prayer was granted by the Executing Court after hearing the petitioner. Thereafter, the Commissioner carried out the construction of the wall, but the same was not as delineated in the plan annexed to the decree. It appears that on account of certain obstruction raised by the respondent, the petitioner consented for construction of the compound wall with a different alignment, which is as shown in the plan filed by the Advocate Commissioner along with his report. Thus, the petitioner was keen in executing the decree and allowed the Advocate Commissioner to take a deviated route than what was mentioned in the plan annexed to the decree. As a consequence of which, it is stated that the petitioner lost an extent of 130 sq. ft., this according to the petitioner has to be compensated and there is a duty cast on the Executing Court to order for such compensation, since, the Executing Court cannot merely look at the decree, but should consider all questions arising thereunder and what is true effect of the decree. That apart, the petitioner claimed, he had paid the tenant a sum of Rs.40,000/- to enable him to vacate the premises and this was done to felicitate the construction of the compound wall and he has to be compensated for that also. 14. It is seen that when the Commissioner reported before the Court by filing a memo pointing out the obstruction made by the respondent, the petitioner was also heard and it appears that the Executing Court was satisfied that an order of break open has to be issued along with police aid. Yet, the Commissioner was not able to proceed with the construction as per the plan annexed to the decree. 15. Yet, the Commissioner was not able to proceed with the construction as per the plan annexed to the decree. 15. Therefore, at this stage of the matter, the appropriate step, which the petitioner should have taken is to approach the Executing Court for necessary relief by restraining the respondent from interfering with the implementation of the decree in its letter in sprit and compel implementation of by removing the decree as its stood. However, the petitioner did not resort to such proceedings, but consented and allowed the Commissioner to take a deviated line and complete the construction. The Commissioner also submitted his report along with plan and also mentioned that the petitioner gets only 1835 sq. fts. Based on such report, the petitioner now seeks for compensation. Though the consent given by the petitioner to the Advocate Commissioner to adopt a deviated line of construction may not amount to waiver of his right over the property, but yet, it cannot given a cause of action for the petitioner to call upon the Executing Court to compensate the petitioner for the loss of about 130 sq. ft. on account of the deviation in the line of construction. The petitioner having consciously allowed the Advocate Commissioner to construct the compound wall in the manner other than what was mentioned in the plan annexed to the decree cannot compel the Executing Court to exercise its power and grant compensation. By virtue of the decree, the petitioner is entitled to 50% of the cost of construction and 50% right over the compound wall. Therefore, the Executing Court correctly held that the petitioner is entitled to recover 50% of the cost of construction and 50% of the remuneration paid to the Advocate Commissioner. On account of peculiar facts of the present case and the conduct of the petitioner in allowing the Advocate Commissioner to proceed in a manner other than the decree, the claim for compensation cannot be a claim, which could be agitated in an application under Section 47 CPC, as it is not a case of assessment of damages for any acts of waste, but a claim for compensation for the loss of land, which was on account of the petitioner's conduct in allowing the Commissioner to proceed differently than what was contemplated in the decree. Therefore, the Executing Court was fully justified in declining grant the relief in this regard. 16. Therefore, the Executing Court was fully justified in declining grant the relief in this regard. 16. Further, the claim of Rs.40,000/- stated to have been paid by the petitioner for vacating the tenant is a payment made out of the petitioner's own discretion and by no stretch of imagination, it could be stated to flow from the decree giving jurisdiction of the Executing Court to consider such claim. In fact that claim has to be independently proved before the competent forum and the same cannot be adjudicated in an application under Section 47 CPC. The instant case has a peculiar factual background and it is not a case where, there was a depreciation of a value of the property on account of the willful conduct of the Judgment-debtor and in which case, the Executing Court would have been fully justified in exercising power under Section 47 CPC. Therefore, the Executing Court correctly assessed the amount, which the petitioner is entitled to towards the cost of construction and the remuneration paid to the Advocate Commissioner and accordingly, granted the relief. 17. In view of the above, this Court is of the view that the order passed by the Executing Court is perfectly legal and valid and calls for no interference. Accordingly, the Civil Revision Petition fails and it is dismissed. No costs.