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2015 DIGILAW 2407 (MAD)

Meenakshi Sundaram v. Seemaichamy

2015-07-07

K.K.SASIDHARAN

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Order K.K. Sasidharan, J. Introduction: 1. The jurisdiction of Executing Court to look into pleadings leading upto the decree, besides the judgment to decide whether decree is executable is the substantial question that arises for adjudication in this Civil Revision Petition filed by the decree holder. The Facts: The petitioner filed a suit in O.S. No. 36 of 2006, before the learned District Munsifcum Judicial Magistrate, Natham. The suit was filed for declaration and mandatory injunction. The Trial Court decreed the suit. Thereafter, the petitioner filed Execution Petition in E.P. No. 12 of 2008. 2. The learned Executing Judge dismissed the Execution Petition for mandatory injunction on the ground that exact measurements regarding encroachment were not shown in the decree. The order dated 02 December, 2011 in E.P. No. 12 of 2008 is under challenge in this Civil Revision Petition. Submissions: 3. The learned counsel for the petitioner contended that the judgment in O.S. No. 36 of 2006 and the report filed by the Advocate Commissioner would show the extent of encroachment and as such, the learned Executing Judge should have executed the decree. According to the learned counsel, it is open to the Executing Court to execute the decree, taking into account the judgment, notwithstanding the fact that the decree was not drawn in accordance with the judgment. 4. The learned counsel for the first and second respondents supported the order passed by the Executing Court. Analysis: 5. The petitioner filed a suit in O.S. No. 36 of 2006 and obtained a decree from the Trial Court. The petitioner filed Execution Petition to execute the decree relating to mandatory injunction. The learned Executing Judge was of the view that exact measurements of the encroached portion were not given in the decree and as such, it is not executable. 6. The judgment in O.S. No. 36 of 2006 contains certain details with regard to encroachment. Similarly, the report filed by the Advocate Commissioner in I.A. No. 355 of 2005 also contains the details of the encroachment made by the judgment debtors. 7. The question, therefore, is whether it is open to the Executing Court to refer the judgment to find out whether details were given by the Trial Court with regard to measurements for executing the decree of mandatory injunction. The Authorities: 8. 7. The question, therefore, is whether it is open to the Executing Court to refer the judgment to find out whether details were given by the Trial Court with regard to measurements for executing the decree of mandatory injunction. The Authorities: 8. The Supreme Court in Bhavan Vaja v. Solanki Hanuji Khodaji Mansang, AIR 1972 SC 1371 : (1973) 2 SCC 40 considered the question as to whether while executing the decree, it is open to the Executing Court to take into consideration the pleadings as well as the proceedings upto the decree. The Supreme Court observed that it is within the province of the Executing Court to consider the materials available on record, besides the decree, for the purpose of deciding as to whether the decree is executable. The relevant observation reads thus: "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. 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. 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." 9. The question as to whether the Executing Court is entitled to look into the judgment to determine the question regarding executability of decree, in case decree is silent came up for consideration before the Privy Council in Bank of Bihar Ltd. v. Sarangdhar Singh, 1948 (Vol. 61) LW 747 : (1949) 1 MLJ 105 . The Privy Council observed that it is permissible to look into the judgment also while considering the executability of the decree. "The rule is well established that an execution Court cannot go behind the decree and question its correctness; but when the decree is silent, as in the present case, and gives no indication as to what property should be sold in execution, it is permissible for the Court to look into the judgment in order to find out whether upon any issue properly raised and determined as between the parties interested the property brought to sale has been held to belong to the judgment-debtor." 10. The learned Executing Judge appears to have been moved by the fact that the decree does not contain the exact measurements with respect to the area under encroachment. The Executing Court failed to consider the string of materials produced by the petitioner to show that the decree is executable. I am, therefore, of the view that the matter requires fresh consideration. Disposal: 11. The Executing Court failed to consider the string of materials produced by the petitioner to show that the decree is executable. I am, therefore, of the view that the matter requires fresh consideration. Disposal: 11. In the result, the order dated 02 December, 2011, in E.P. No. 12 of 2008 is set aside. 12. The learned Executing Judge is directed to consider the decree in O.S. No. 36 of 2006, in the light of the judgment and the Commissioner's report in I.A. No. 355 of 2005 and take a decision as to whether the decree is executable. In the upshot, I allow the Civil Revision Petition. No costs.