Thus, by refusing to entertain the execution
application on the ground that the decree holders should first
make an attempt to obtain the possession, learned Civil Judge
has created a possibility of law-breaking by the decree holders,
which cannot be countenanced. Order is absolutely perverse
and against the well-known canons of law. It cannot be
sustained even for a minute.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 115 OF 2014.
Mr. Maximo Antonio Viegas Vs Dr. Michael Viegas,
CORAM:-S. B. SHUKRE, J.
DATE:- 30th April, 2014.
Citation;2014 (6) MH.L.J 184 Bom
Rule returnable forthwith.
2. Heard finally by consent.
3. Mr. R. Noronha, learned Advocate waives notice
on behalf of the respondents.
4. The only point which arises for my determination
is:-
Whether the impugned order dated 29.10.2013, is
so illegal and arbitrary as to warrant interference
by this Court?
5. Upon hearing both sides, it can be seen that the
learned Civil Judge has refused to exercise the jurisdiction
which he has in respect of the proceedings initiated in
execution of a decree.
6. The decree of the trial Court dated 5.8.2008 has
been modified by the First Appellate Court by its judgment and
decree passed on 16.8.2010. As per modified decree, the
judgment debtors are required, amongst others, to hand over
peaceful possession of the suit portion to the plaintiffs/decree
holders and also to keep the door at the stair case in question
open so as to facilitate to decree holders ingress to and egress
from the suit premises. Since vacant possession was not
delivered, the decree holders initiated Execution Proceedings
in which, the learned Civil Judge passed an order that for the
prayer seeking intervention of the Court executing the
remainder of the decree i.e delivery of the vacant possession of
the suit portion, the decree holders would have to take steps to
execute the decree and can approach the Court only after they
have been obstructed from taking over the possession.
7. Such an order is absolutely illegal and perverse
and even arbitrary as it does not take into account the failure
of the judgment debtors to perform the obligation imposed
upon them in the modified judgment and decree dated
16.8.2010 on the one hand and encourages a trend, trend of
decree holders trying their hand at use of force by themselves
in executing a decree, a course having no sanctity of law, on
the other. If the judgment debtors have not complied with the
directions given in the decree, decree holders are not
supposed to take law in their own hands and go on taking
possession from the Judgment debtors in a forcible manner.
Cocreive method to execute a decree has to be adopted against
those judgment debtors who do not comply with directions
given to them in the decree and as is known to law, the only
machinery clothed with the power of use of force to execute a
decree is the executing Court or the authority on which such
powers are conferred expressly by law. A decree holder, being
a private person, does not have these powers and if he
exercises them, he would be making himself liable for civil or
criminal or both the actions. Therefore, the decree holders
would have to approach the Court of law for getting such a
direction executed through the machinery of the Court.
8. Thus, by refusing to entertain the execution
application on the ground that the decree holders should first
make an attempt to obtain the possession, learned Civil Judge
has created a possibility of law-breaking by the decree holders,
which cannot be countenanced. Order is absolutely perverse
and against the well-known canons of law. It cannot be
sustained even for a minute.
9. In the circumstances,the impugned order is
quashed and set aside. Matter is remanded back to the Civil
Judge, Junior Division, Panaji for deciding the execution
application in accordance with law. Application shall be
disposed of within two months from the date of the receipt of
the order of this Court. Parties to appear before the Executing
Court on 12.6.2014 at 10.00a.m. Point is answered
accordingly.
10. Writ Petition is allowed in the above terms.
11. Rule is made absolute in these terms. No order as
to costs.
S. B. SHUKRE, J.
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