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2017 DIGILAW 258 (JK)

Krishan Lal v. Vinod Kumar

2017-05-23

B.S.WALIA

body2017
JUDGMENT : B.S. Walia, J. 1. Judgment was passed in File No. 46/Civil Suit on 22.08.2013. Operative part of the same which is relevant for the adjudication of the controversy involved in this petition under Section 104 of the Constitution of Jammu and Kashmir is reproduced hereunder:- Therefore while having recourse to Section 28, 33 and 35 of the Easements Act and convenient in the facts of the case, the defendant is permanently restrained from disturbing the right to air and light of the plaintiffs house coming from windows on the first and second floor of the southern side of defendants house and for that purpose he shall keep three feet space between his roof and the house of the plaintiff. The suit is accordingly disposed off. Office to prepare decree sheet.' The entire controversy revolves around the distance of three feet space between the roof of house of judgment debtor i.e. respondent herein and the house of the plaintiff i.e. petitioner herein for the 1st and 2nd floor. The matter came up before the learned Executing Court by way of an application filed by the judgment debtor as well as the decree holder, both alleging non-compliance by the other side with the judgment and decree of the learned Civil Court dated 22.08.2013. Both applications were disposed of vide order dated 16.12.2014 by holding that the judgment debtor was ready and willing to leave three feet space between the roof of his house and the house of the decree holder and had also undertaken not to close the light and air of the house of decree holder coming through the windows of the first and second floor of his house, rather it was the decree holder who by giving a misinterpretation to the judgment and decree was not allowing the judgment debtor to lay the roof of his house even after leaving three feet space between the roof of his house and the house of the decree holder. Both parties were directed to strictly adhere to the decree as interpreted in the order and in case of any violation or hindrance in the smooth execution of the decree on spot by either parties, the other party was granted liberty to approach the SHO, Police Station, Bhaderwah to ensure compliance of the decree in the manner as described in the order. Relevant extract of the aforementioned observation of the learned Executing Court is reproduced hereunder:- 'In nut shell there is no violation of the decree at the hands of judgment debtor as the judgment debtor is ready to leave three feet space between the roof of his house and the house of decree holder and also undertakes not to close the light and air of the house of decree holder coming through the windows of the first and second floor of his house. Rather it is the decree holder who by giving a misinterpretation to the judgment and decree is not allowing the judgment debtor to lay the roof of his house, even after leaving three feet space by the judgment debtor between his roof and the house of decree holder. Thus, both the execution applications stands disposed of with direction to parties to strictly adhere to the decree as interpreted above and still if any, of the party creates any violation or hindrance in the smooth execution of the decree on spot, the other party may approach SHO Police Station, Bhaderwah with a copy of this order who shall ensure, the compliance of the decree in the manner as described above.' 2. The manner in which the learned Executing Court required the decree to be executed is also reproduced hereunder:- 'A bare perusal of finding returned in the case in the above two paras reveals that the plea of the decree holder to the effect that Judgment debtor has been commanded to leave three feet space between the house of decree holder and his house right from the ground floor of his house and for that he has to dismantle his already raised construction is without any substance. The judgment debtor has simply been commanded not to disturb the right to air and light of the plaintiff's house coming from the windows on the first and the second floor of the southern side of defendant's house end for that purpose he has to keep three feet space between his roof and the house of plaintiff. There is no mention of the status of ground, floor of the house of the decree holder in the judgment and decree. An executing Court has to execute the decree as it is. A new case cannot be projected in the execution proceedings. There is no mention of the status of ground, floor of the house of the decree holder in the judgment and decree. An executing Court has to execute the decree as it is. A new case cannot be projected in the execution proceedings. If the decree holder was aggrieved by the judgment and decree passed in the matter in any manner, he was to seek appropriate remedy before appropriate forum.' 3. Learned counsel has referred to the application filed by the petitioner under Order-21 Rule-32 of the CPC. A Perusal of the same reveals grievance of the respondent/judgment debtor having willfully failed to comply with the decree and of his being bent upon to disturb the right to air and light of the plaintiffs house by raising construction without keeping three feet space between the roof of his house and the house of the petitioner. 4. Learned counsel has also referred to Paragraph No. 3 of the objections filed by the judgment debtor to contend that the judgment debtor had in the aforesaid objections stated that although the judgment debtor wanted to raise construction as per the decree but the decree holder was not permitting the same and that the wooden elevation extended by the petitioner was required to be cut. 5. Learned counsel contended that in terms of Section 47(1) of the CPC, all questions arising between the parties to the suit in which the decree was passed, or their representative etc. and relating to the execution, discharge, or satisfaction of the decree were to be determined by the Court executing the decree and not by a separate suit. 6. Section 47(1) of the CPC is reproduced hereunder: - '47. Questions to be determined by the Court executing decree.-(1) All questions arising between the parties to the suit in which the decree was passed, or their representative etc and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing decree and not by a separate suit.' 7. Learned counsel further referred to Order 21 Rule 23 (2) of the CPC to contend that where any objections are filed to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit. Learned counsel further referred to Order 21 Rule 23 (2) of the CPC to contend that where any objections are filed to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit. Order 21 Rule 23(2) is reproduced hereunder:- 'Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.' 8. On the basis of the same, learned counsel contends that although the judgment debtor had raised a categorical objection in Paragraph No. 3 that the wooden elevation of the petitioner/decree holder was required to be cut yet despite the said objection falling within the ambit of Section 47 Rule 1 of the CPC, to finding in respect thereto had been given in terms of Order XXI Rule-23 (2) of the CPC. Learned counsel contended that the wood structure on the petitioner's house was decades old and the objection for removal of the same assumed significance since the decree ordered maintenance of three feet between the roof of the judgment debtor's house and the petitioner/decree holder's house. Learned counsel contended that determination of the objection in terms of Section 47(1) of the CPC was of core importance since on the outcome of the same would depend the point from where the distance of three feet was required to be maintained. 9. Learned counsel for the respondent/judgment debtor on the other hand refers to last para of page two of the impugned order dated 16.12.2014 to contend that the Executing Court had taken into account that the plea of the decree holder that the judgment debtor had been commended to leave three feet space between the house of the decree holder and his house right from the ground floor was without any substance and further that there was no mention of the status of ground floor of the house of the decree holder in the judgment and decree and that the only thing which was required to be done was that the judgment debtor was to keep three feet space between his roof and the house of the plaintiff on the first end second floor. 10. 10. The same is disputed by learned counsel for the petitioner to contend that the claim of the petitioner was that a distance of three feet between the roof of the judgment debtor's house and the house of the plaintiff/decree holder i.e. petitioner was to be maintained and once objection had been raised by the judgment debtor in paragraph No. 3 of his objection that there was an extension, learned counsel contended that in the circumstances, it was mandatory for the learned Executing Court to have given its finding on the issue as to whether the distance of three feet was to be maintained from the roof of the house of the judgment debtor to the end of wooden structure on the petitioner's house or any other point. 11. Learned counsel for the petitioner has contended that the observations of the learned Executing Court with regard to the plea of the decree holder is contrary to the pleadings in the application under Order XXI Rule 32 of the CPC as it was never the plea of the petitioner/decree holder that the distance of three feet between the roof of the house of the judgment debtor and the hoc se of the decree holder be maintained from the ground floor. Learned counsel contended that only plea of the decree holder as evident from the pleadings in paragraph Nos. 1 & 2 of the application was that of the requirement of the judgment debtor to keep three feet space between his roof and the house of the plaintiff i.e. decree holder. 12. No other point has been argued. 13. I have considered the submissions made by learned counsel for the parties and am of the view that the plea raised by learned counsel for the petitioner is liable to be accepted. 12. No other point has been argued. 13. I have considered the submissions made by learned counsel for the parties and am of the view that the plea raised by learned counsel for the petitioner is liable to be accepted. Once objection has been raised in the execution proceedings as has been raised by the judgment debtor in paragraph No. 3 of the objection that the wooden elevation on the petitioner/decree holder's house was required to be cut for maintaining the distance of three feet between the roof of his house and the house of the petitioner then in terms of Section 47(1) read with Order XXI Rule 23(2) of the CPC, the learned Trial Court was required to return a finding on the same since, the point from which the distance of three feet is required to be maintained by the judgment debtor from the roof his house to the house of the petitioner would be dependent upon the outcome of the said question. 14. In view of the above, the impugned order is set aside. The matter is remanded to the learned Executing Court to decide the matter afresh in the light of the objections raised in terms of Section 47(1) read with Order XXI Rule 23(2) of the CPC. Needful be done at the earliest after affording opportunity to the parties. 15. Parties to put in appearance before the learned Executing Court on 1st June, 2017. Petition under section 104 disposed of with the aforementioned directions resultantly, connected contempt is closed. Disposed off.