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2024 DIGILAW 677 (KER)

Satheesan Nair, S/o. Sivaraman Nair, Represented By His Power Of Attorney Holder Sreeja, D/o. Sasikala v. Nizarudeen, S/o. Muhammed Basheer

2024-06-19

KAUSER EDAPPAGATH

body2024
ORDER : This Civil Revision Petition has been filed challenging the order passed by the Additional Munsiff Court, Kollam (for short, 'the execution court') dismissing an execution petition on the ground that the decree is inexecutable. 2. The revision petitioner is the decree-holder, and the respondents are the judgment debtors in E.P.No.15/2017 in O.S.No.853/2011 on the file of the execution court. The suit was one for declaration of title, possession and permanent prohibitory injunction. The defendants were set ex-parte and the suit was decreed as prayed for by judgment dated 11/03/2014. The revision petitioner filed an execution petition before the execution court as E.P.No.15/2017, wherein, among other reliefs, he prayed to carry out the construction of the compound wall or fencing to decree B schedule property as per Ext.C1(b) plan at the expense of the decree-holder through the process of court by deputing the Amin and appointing a Commission. The execution court dismissed the execution petition as not executable. It is challenging the said order; the decree-holder has filed this revision petition. 3. I have heard Sri. Harish Gopinath, the learned counsel appearing for the revision petitioner. There is no appearance for the respondents. 4. The execution court dismissed the execution petition mainly on the following grounds: (i) The decree does not specify the portion of the property through which the compound wall has to be put up. Without specifying the same, the compound wall cannot be directed to be put up. (ii) Ext.C1(b) plan has not been appended to the decree, and the decree does not show that Ext.C1(b) is accepted by the court. (iii) Amin reported that the decree is ambiguous, and the order cannot be executed. 5. Order 20 Rule 6 of CPC deals with the contents of the decree. The said Rule, among other things, states that the decree shall specify clearly the relief granted or other determination of the suit. In the decree, the reliefs granted were not specifically stated. What is stated in the result portion of the decree is that “the suit is decreed with costs.” It is true that an execution court cannot go beyond the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. What is stated in the result portion of the decree is that “the suit is decreed with costs.” It is true that an execution court cannot go beyond 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. The executing court would certainly be entitled to look into the averments and relief prayed in the plaint to construe the decree. [Bhavan Vaja and Ors. vs Solanki Hanuji Khodaji Mansang and Anr., AIR 1972 SC 1371 and Topanmal Chhotamal Vs. M/s. Kundomal Gangaram and Ors., AIR 1960 SC 388 ]. 6. The reliefs prayed in the plaint are as follows: “(a) To declare the title and possession of the decree-holder over decree C and E schedule properties. (b) Restraining the judgment debtors from trespassing upon decree B schedule property of which decree C and E schedule properties form part, committing any act of waste therein, putting to use any portion of B schedule property as a way, taking vehicles through B schedule property, making any obstruction to the decree-holder in preserving decree B schedule property by constructing compound wall, fencing etc. and in peacefully enjoying the property, committing any mischief in B schedule property, disturbing the possession of the decree holder over B schedule property and doing any other act affecting the right of the decree holder over decree B schedule property by a perpetual injunction. (c) Allowing the decree holder to recover a sum of Rs.50,000/- with future interest at the rate of 12 per cent annum from the date of plaint till the date of recovery from the judgment debtors personally and charged on all of their assets, both movable and immovable.” Since the suit was decreed with costs, all the reliefs sought in the plaint are deemed to have been granted even though they were not specifically stated in the decree. 7. The reliefs sought in the execution petition are as follows : “xx 2. 7. The reliefs sought in the execution petition are as follows : “xx 2. The construction of the compound wall or fencing to decree B schedule property as per Ext.C1(b) plan may be carried out and completed at the expenses of decree holder through the process of this Honourable Court by deputing the amin and appointing a commission. 3. The Station House Officer, Kottiyam Police Station or any other competent Police Officer may be directed to render necessary police aid to enforce the decree. 4. The judgment debtors may be detained in the civil prison and their properties, the schedule of which will be produced later, may be attached. 5. The attached properties may be sold in case the judgment debtors are not obeying the decree within a reasonable time and compensation may be awarded to decree holder out of the sale proceeds. 6. The immovable properties belonging to the judgment debtors, the schedule of which will be filed later, may be attached and sold for the realisation of the amount due to the decree holder with the cost of execution under Rules 54 and 66 of Order 21. 7. The movable properties belonging to the judgment debtors, the schedule of which will be filed later, may be attached and sold for the realization of the amount due to the decree holder with the cost of execution under Rules 43, 64, 66 and 77 of Order 21. 8. Arrest and detain the judgment debtors in the civil prison after issuing notice under Rule 37 of Order 21.” 8. Rule 32 of Order 21 of CPC provides for the execution of a decree for specific performance of a contract, restitution of conjugal rights or injunction. Sub Rule (1) of Rule 32 of CPC states that where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of an injunction by his detention in the civil prison, or by the attachment of his property, or by both. Apart from the arrest of the judgment debtor or attachment of his property, sub-rule (5) of Rule 32 of CPC empowers the execution court to take appropriate action for enforcing the decree at the cost of the judgment debtor who wilfully disobeys such decree. It says that, where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes stated in sub-rules (1) to (4) of Rule 32 of CPC, direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the Court, at the cost of the judgment debtor. The Explanation clarifies that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions. 9. The execution court has deputed a court Amin, who reported that the decree is ambiguous and could not be executed. The execution court found that on perusal of the decree and reliefs prayed in the suit, there is nothing to show that relief for constructing a compound wall to decree B schedule property was granted, and hence, the decree is not executable. 10. It is a case where the relief sought by the decree-holder includes restraining the judgment debtors from making any obstruction to the decree-holder in preserving decree B schedule property by constructing the compound wall, fencing, etc., by a permanent prohibitory injunction. In the execution petition, the decree-holder has clearly pleaded that despite the decree, the judgment debtors are trespassing upon the B schedule property, committing acts of waste therein and though he wanted to construct a compound wall or fence the boundaries of the B schedule property in order to prevent further trespass and committing waste by the judgment debtors, they physically obstructed the construction of the compound wall and committed waste by removing the construction materials. It was in these circumstances that prayer was sought to construct a compound wall or fencing to the B schedule property through the process of the court. It is also stated in the execution petition order that even though judgment debtors have sufficient opportunity to obey the decree, they failed to obey it, and they are acting in a contumacious manner and continuously violating the decree wilfully. 11. It is also stated in the execution petition order that even though judgment debtors have sufficient opportunity to obey the decree, they failed to obey it, and they are acting in a contumacious manner and continuously violating the decree wilfully. 11. As stated already, the Explanation to Rule 32 of Order 21 of CPC clarifies that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions. Hence, there cannot be any doubt that Order 21 Rule 32(5) applies to a prohibitory injunction as well. In other words, it applies to cases where the party is directed to do some act as also to cases where he is abstained from doing it. Thus, the execution petition seeking enforcement of the prohibitory injunction alleging violation is quite maintainable. When a decree for prohibitory injunction was passed restraining the judgment debtor from making any obstruction to the decree-holder in preserving the property in dispute by constructing a compound wall or fencing, and the judgment debtor, even after the decree, obstructs the construction of the compound wall or fencing, the execution court can very well enforce such a decree resourcing to Rule 32(5) of Order 21 of CPC by carrying out the construction of the compound wall or fencing through the process of the court by deputing a court Amin or deputing a Commission. Recently, a Single Bench of this Court in Paulose V.U. v. V.P.Molly (2024 KHC OnLine 115) has held that there need not be a separate and specific decree enabling the plaintiff to put up a boundary wall in the plaint schedule property, once his title is declared, which is followed by a decree for a permanent prohibitory injunction. It was also held that a Commission could be deputed at the execution stage to ensure that construction is being carried out within the identified boundary of the decree-holder in the plaint schedule property, and the said course would only be in consonance with the powers under Order 21 Rule 32 of CPC. 12. A Commission has been taken out by the plaintiff/decree holder in the suit and the Commissioner filed a report and plan. The Commission report was marked as Ext.C1(a) and the plan was marked as Ext.C1(b). The learned counsel for the petitioner made available to me the copies of Exts.C1(a) and C1(b). 12. A Commission has been taken out by the plaintiff/decree holder in the suit and the Commissioner filed a report and plan. The Commission report was marked as Ext.C1(a) and the plan was marked as Ext.C1(b). The learned counsel for the petitioner made available to me the copies of Exts.C1(a) and C1(b). A perusal of Ext.C1(b) would show that the Commissioner, with the assistance of a surveyor, identified the plaint schedule properties with reference to the title deed and clearly demarcated the plaint B, C, D and E schedule properties in it. Thus, the boundaries of the plaint B schedule property have been clearly marked in Ext.C1(b). Even though the decree does not specify that Ext.C1(b) forms part of it, definitely, it can be deemed to form part of it. The said plan can very well be used for identifying the boundaries of the B schedule property to enforce the decree as prayed for by the decree holder. In the absence of dispute regarding the description of the plaint schedule properties or the boundaries of the plaint B schedule property identified and marked by the commissioner in Ext.C1(b) plan, the decree-holder cannot be denied the permission to put up boundary wall or fencing through the said boundary, merely because the decree specifically does not say that Ext.C1(b) plan does not form part of it. Apart from the prayer for putting up the boundary, the decree-holder has also sought the arrest and detention of the judgment debtors and the attachment of their property. The execution court failed even to consider those reliefs. 13. The execution court, without adverting to Order 21 Rule 32 of CPC, simply dismissed the execution petition, holding that the decree was inexecutable because Amin had reported that the decree was ambiguous and did not specify the portion of the property through which the compound wall has to be constructed. Even if the decree is ambiguous, it is the bounden duty of the execution court to construe the decree and ascertain its true effect by looking into the pleadings, relief sought and judgment for the purpose of its execution. If the execution court fails to discharge that duty, it has plainly failed to exercise the jurisdiction vested in it. The endeavour of the execution court must be to see that the decree is executed rather than holding it as inexecutable clinching on technicalities. 14. If the execution court fails to discharge that duty, it has plainly failed to exercise the jurisdiction vested in it. The endeavour of the execution court must be to see that the decree is executed rather than holding it as inexecutable clinching on technicalities. 14. For the reasons stated above, I hold that the impugned order is not sustainable. Accordingly, it is set aside. The execution court is directed to execute the decree in accordance with the law, taking into account the observations made in this order. Postscript: 15. This court has encountered many instances where the decree simply states, “the suit is decreed,” “the suit is decreed as prayed for,” or “the suit is decreed with/without cost,” without clearly specifying the nature of the relief granted. There are also instances where the decree is either incomplete or ambiguous. 16. Section 33 of CPC requires the court to pronounce judgment which is followed by a decree. Rules 1 to 5 of Order 20 deal with judgment. Rules 6 to 19 deal with decrees. As per the scheme of the CPC, the decree should follow the judgment and must agree with it. Every decree must be self-contained and capable of execution. It is the mouthpiece of the suit in its immediate result. It gives the formal expression of an adjudication which decides the suit. A decree is thus an essential part of the ultimate outcome in all suits. Rule 6 of Order 20 requires a decree to contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state expressly and specifically the amount of costs incurred in the suit and by whom or what property and in what proportions such costs are to be paid. Specification of costs without fixing responsibility and allotment is not enough. Rules 9 to 19 of Order 20 are illustrative of the contents of the decree in the specified category of suits. The decree should be in the form prescribed in Appendix D to the First Schedule with such variations as the facts and circumstances of each case may require. Specification of costs without fixing responsibility and allotment is not enough. Rules 9 to 19 of Order 20 are illustrative of the contents of the decree in the specified category of suits. The decree should be in the form prescribed in Appendix D to the First Schedule with such variations as the facts and circumstances of each case may require. To be precise, every decree must contain the following: (i) number of the suit, (ii) names and description of parties and their registered addresses, (iii) particulars of claim, (iv) relief granted or other determination arrived at, and (v) amount of costs incurred in the suit; and by whom or out of what property and in what proportions they are to be paid. All the civil courts in the State must ensure that the decree is drawn up in consonance with Rule 6 of Order 20 and the form prescribed in Appendix D to the First Schedule of CPC so that unnecessary objections and complexities at the stage of execution can be avoided. The Registry is directed to forward a soft copy of this order to all the District Judges, who shall share it with all the civil courts in their respective districts for compliance. C.R.P. is disposed of as above.