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2014 DIGILAW 2896 (MAD)

T. Jayaraman v. M. Swaminathan

2014-08-26

V.M.VELUMANI

body2014
Judgment : 1. This civil revision petition has been filed to set aside the order, dated 13.06.2014, passed in E.A.No.3 of 2014 in E.P.No.13 of 2012 in O.S.No.244 of 2004 on the file of learned District Munsif, Thiruvaiyaru. 2. The petitioners are the defendants, whereas the respondents are the plaintiffs in the suit in O.S.No.244 of 2004 on the file of District Munsif Court, Thiruvaiyaru. 3. The respondents filed the suit for injunction. The suit was dismissed on 26.10.2005. Against the order of dismissal, the respondents filed an Appeal in A.S.No.102 of 2005. The said appeal was dismissed on 05.09.2008. As against which, the respondents filed S.A.(MD) No.946 of 2010. This Court, by Judgment and Decree, dated 09.06.2011, modified the Judgment and Decree of the trial Court and the first appellate Court and passed the following Decree:- "(i) That the Judgment and decree passed in O.S.No.244 of 2004 by the District Munsif Court, Thiruvaiyaru upheld in A.S.No.102 of 2005 by the Additional Sub-Court, Thanjavur, be and hereby are set aside; (ii) that the appellants herein/Legal representatives of the plaintiff shall get the reliefs of perpetual as well as mandatory injunctions restraining the respondents herein/defendants their men from in anyway interfering with the Appellants/Plaintiffs enjoyment of 'A' schedule property as a way for reaching the suit 'B' schedule property and to that effect O.S.No.244 of 2004, be and hereby, is decreed without costs; and (iii) that a period of three months, be and hereby, is granted for enforcing the mandatory injunction without appearing the constructions in the western extremity of the suit 'A' schedule property." 4. To implement the said Judgment and Decree, the respondents filed E.P.No.13 of 2012. In the said execution proceedings, the petitioner filed an application in E.A.No.3 of 2014, under Section 47 of C.P.C., stating that the Judgment and Decree passed by this Court is not executable, as there is no pathway on the western side of the suit property, as held by this Court. The petitioners alleged that in the Advocate Commissioner's Report, there is no finding that there is a pathway in the suit property. The respondents filed counter affidavit opposed the same stating that this Court has given a clear finding that there is a pathway on the western side of the property and the respondents are entitled to use the same. They also contended that the executing Court cannot go beyond the decree. The respondents filed counter affidavit opposed the same stating that this Court has given a clear finding that there is a pathway on the western side of the property and the respondents are entitled to use the same. They also contended that the executing Court cannot go beyond the decree. The application filed by the petitioners is not maintainable, as the issue raised by the petitioners is not covered by the provisions of Section 47 of C.P.C. 5. The learned District Munsif, Thiruvaiyaru, considering all the materials on record, dismissed the application on 13.06.2014. Against the order of dismissal of E.A., the petitioners have filed the present civil revision petition. 6. Heard Mr.R.Baskaran, learned counsel appearing for the revision petitioners and Mr.PT.S.Narendra Vasan, learned counsel appearing for the second respondent. 7. The learned counsel for the revision petitioners and the second respondent reiterated the averments made in the affidavit and in the counter affidavit filed in support of the application filed in the E.A. 8. In support of his submission, the learned counsel for the revision petitioners relied on the following Judgments: (i) Bhavan Vaja and Others v. Solanki Hanuji Khodaji Mansang and Another [ 1973 (2) SCC 40 ], wherein in paragraph No.20, it has been held as follows: 20. 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 cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution 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. 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. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. 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 had 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. (ii) Vedic Girls Senior Secondary School, Arya Samaj Mandir, Jhajjar v. Rajwanti (Smt) and Others [2007) (5) SCC 97],wherein in paragraph Nos.24 and 25, it has been held as follows:- "24. Having heard the learned counsel for the respective parties we are unable to agree with the reasoning both of the High Court as also of the executing court since the decree does not indicate the basis on which the dues of Respondent 1 were to be calculated. When there were conflicting claims regarding the salary payable to Respondent 1, the said respondent ought to have taken steps to amend the prayers in the plaint so that proper relief could be provided to her. The same not having been done, the executing court had no jurisdiction to go beyond the decree as passed, despite the fact that the trial Judge had noticed the dispute and had even decided the same. 25. The same not having been done, the executing court had no jurisdiction to go beyond the decree as passed, despite the fact that the trial Judge had noticed the dispute and had even decided the same. 25. As will be evident from the decree extracted hereinabove, Respondent 1 was entitled to regularisation of her services with effect from 6-7-1988, with other consequential relief and was also entitled to receive her salary through crossed cheques. The executing court was required to execute the decree as made and it had no jurisdiction to widen its scope or to add to it unless a specific question was raised relating to discharge or satisfaction of the decree as envisaged in Section 47 of the Code of Civil Procedure." 9. From the records, it is seen that this Court in the Judgment and Decree of the Second Appeal has categorically held that there is a pathway on the extreme western side of 'A' schedule property and the respondents are entitled to use the same to reach their property, which is described as 'B' schedule property. The respondents have filed E.P. only to implement the decree. It is not open to the petitioners now to raise the point that there is no pathway in 'A' schedule property and his contention according to them, is supported by the Commissioner's report, especially when the petitioners have filed S.L.P. against the Judgment and Decree of the second appeal and the Apex Court has dismissed the petition to condone the delay itself and thereby, did not take up the SLP on file. This amounts to Judgment and Decree of this Court rendered in the second appeal has become final. The learned Judge has considered the Judgment and Decree of this Court, passed in the second appeal and held that this Court has given a clear finding that there is a pathway on the extreme western side of 'A' schedule property. This Court in the Judgment reported in 2010 (3) MWN (Civil) 481 [Rengarajan v. Rajesh and Others], held that the execution Court cannot go beyond the decree. In paragraph Nos.26 and 27, this Court has held as follows:- "26. Sub-section (1) of Section 47 makes it clear that all questions arising between the parties to the Suit in which the decree was passed must relate to the execution, discharge or satisfaction of the decree. In paragraph Nos.26 and 27, this Court has held as follows:- "26. Sub-section (1) of Section 47 makes it clear that all questions arising between the parties to the Suit in which the decree was passed must relate to the execution, discharge or satisfaction of the decree. Objecting the decree on the ground that the decree is not executable cannot be raised under Section 47 of Civil Procedure Code before the Executing Court. Executing Court cannot go beyond the decree and the Executing Court cannot entertain that the decree was passed without jurisdiction. As stated earlier a plea which ought to have been taken before passing that decree cannot be allowed to be raised during Execution proceedings. In Ganapathy v. Balasubramania Gounder, AIR 1987 Mad.124, Justice M.N.Chandurkar, Hon'ble The Chief Justice (as he then was) held as follows:- "10. .... It is an established proposition of law that the Executing Court must execute the decree as it stands and it cannot go into the correctness or validity of the decree except when the decree is a nullity. Since the decree is of a Court with jurisdiction, the Executing Court is bound to execute the decree as it stands." 27. When the decree is made by a Court which had no inherent jurisdiction to make it, objections to its validity may be raised in an Execution proceedings only if the objection appears on the face of the records. Where the objection as to the jurisdiction of the Court requires, that the question of jurisdiction ought to have raised before the Court which passed the decree but have not been raised, the same cannot be raised in the Executing Court." 10. From the order of the learned Judge, it is clear that the learned Judge has rejected the contention of the petitioners, as the E.P. is only to implement the decree, which is valid and legal. Therefore, I find that there is no infirmity or illegality in the order passed by the learned Judge. Hence, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.