in a suit for fixation of common boundary of the plaintiff and defendant,
being one intended to put an end to the dispute between the parties and to
achieve the object of common good, should be allowed to be executed by a
defendant in the suit too. According to me, the sum and substance of the
legal principles to be borne in mind regarding the terms "decree holder"
and "holder of a decree" can be stated like this. The term "decree holder"
denotes a person (i) in whose favour a decree has been passed (ii) in
whose favour an order capable of execution has been passed and (iii)
whose name appears in the decree, either as plaintiff or defendant, and the
following conditions are satisfied:
(a) the decree must be one capable of execution and
(b) the said person, by the terms of the decree itself or from its
nature, should be legally entitled to seek its execution.
Similarly, the term "holder of a decree" takes in not only the "decree
holder", but other rightful persons like transferee of a decree, legal
representative, etc.
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
MR. JUSTICE A.HARIPRASAD
26TH DAY OF JUNE 2015
CRP.No. 321 of 2013 ()
SOMAVALLY
Vs
PRASANNA KUMAR
Citation;AIR 2015 Kerala 286
An interesting legal question pop up for determination:
Can a decree in a suit for fixation of common boundary of the
properties belonging to the plaintiffs and defendants be executed at the
instance of the defendants?
2. Brief facts: Petitioners are the defendants in O.S.No.342 of
2005 on the file of the Munsiff's Court, Chengannur. Challenge in this
revision petition is against the order passed by the executing court in
E.P.No.66 of 2011, wherein the defendants in the suit for fixation of
boundary claimed demarcation of a common boundary between their
property and that of the plaintiffs. In this context, it is relevant to note that
the suit was one for declaration of the plaintiffs' right over plaint schedule
property, prohibitory injunction against the defendants from trespassing into
the property and also for fixation of common boundary. The suit was partly
decreed by the trial court declaring the plaintiffs' right over the plaint
schedule property and also holding that the line IOM in Ext.C6 plan
submitted by the commissioner is the boundary line separating the
properties of the contesting parties. Certified copy of the plan has been
made a part of the decree. It is noteworthy that the prayer for injunction
was declined by the trial court. Court below dismissed the execution
petition on the sole reason that the defendants cannot seek execution of a
decree for fixation of boundary as they cannot be termed either as "decree
holders" or "holders of the decree". I shall deal with the correctness of this
logic in the succeeding paragraphs. True, the defendants cannot seek
execution of one part of the decree, viz., the relief of declaration granted to
the plaintiffs, for two reasons. Insofar as the declaratory relief is
concerned, the defendants cannot be held to be the "decree holders" as
defined in Section 2(3) of the Code of Civil Procedure, 1908 (in short,
"CPC"). In Section 2(3) of the CPC, the term "decree holder" has been
defined as "any person in whose favour a decree has been passed or an
order capable of execution has been made". Firstly, on a mere reading of
the decree, it is clear that the relief of declaration granted is for the
exclusive benefit of the plaintiffs and, in fact, it is against the defendants.
Logically, therefore, that part of the decree cannot be executed by the
defendants as it may be an execution proceedings against themselves.
Further reason to hold that a declaratory decree cannot be executed at the
instance of the defendants is that such a decree is incapable of execution.
Viewing from any angle, that part of the decree granting a declaratory relief
is inexecutable, not only at the instance of the defendants, but also by the
plaintiffs themselves. The definition of the term "judgment debtor" in
Section 2(10) CPC is also relevant. "Judgment debtor" means any person
against whom a decree has been passed or an order capable of execution
has been made. So far as the declaratory decree is concerned, It is
passed against the defendants, though it is incapable of execution. This is
yet another reason to find that the decree of declaration is incapable of
execution at the behest of the defendants.
3. The point germane for consideration is about the executability
of the decree for demarcation of a common boundary separating the
properties of the plaintiffs and defendants at the instance of the
defendants. I am unable to agree with the view expressed by the court
below that such a decree cannot be executed by the defendants for the
following reasons. The court below failed to consider the marked
difference in the expressions used by the CPC in Section 2(3) and Order
XXI Rule 10. The term "decree holder" is defined in Section 2(3) CPC.
The expression used is "holder of a decree" in Order XXI Rule 10 CPC. At
first blush, it may appear to be synonymous. But, according to me, there is
a legal distinction between these two expressions. The expression "holder
of a decree" occurring in Order XXI Rule 10 CPC takes in a transferee of a
decree and a legal representative of the decree holder also. Order XXI
Rule 16 CPC deals with an application for execution by transferee of a
decree. Such a person also comes within the expression "holder of a
decree". In this context, I may refer to a decision of the Supreme Court in
Dhani Ram v. Sri Ram (AIR 1980 SC 157). Answering a question as to
whether the property in a decree passes as intended in the deed of
assignment, without the recognition of transfer by the court as a pre-
condition, the Supreme Court held that the property in a decree must pass
to the transferee under a deed of assignment when the parties to the deed
intend such property to pass and it does not depend on the court's
recognition of the transfer. It goes without saying that such a transferee is
also entitled to execute the decree. Therefore, the expression "holder of a
decree" in Order XXI Rule 10 CPC takes in parties other than whose name
appear on the decree. Likewise, a legal representative of the decree
holder, though his name may not be inscribed in the decree, can execute it
as provided in the CPC. The term "decree holder" defined in Section 2(3)
CPC takes in persons whose names appear on the record as the persons
in whose favour the decree was made. It includes persons who have been
recognized by the court by order as the decree holder from the original
plaintiff or his representative (see Paupayya v. Narasannah (ILR 2
Madras 216).
4. The aspect then comes up for consideration is about the
implication of the usage "or" in Section 2(3) CPC to separate the two
portions of the provision. Decree holder means any person in whose
favour a decree has been passed. This is the first limb of the provision.
Thereafter, the expression "or" appears. Then it further says that the
decree holder means any person in whose favour an order capable of
execution has been made. On a careful reading, it can be seen that the
word "or" occurring between two limbs of the provision has to be read as
"or" itself. It shall not be read as "and" because the term "decree holder"
as defined in the above provision takes in two category of persons, viz.,
any person in whose favour a decree has been passed and any person in
whose favour an order capable of execution has been made. In this
backdrop, the question whether fixation of boundary can be executed at the
instance of defendants will have to be considered.
5. A Division Bench of this Court in P.Narayanan Nair v.
E.Achuthan Nair (1972 KLJ 769:1973 KLT 299) has clearly held that a
suit for determining the boundary dispute is maintainable under Section 9
CPC. This Court in clear terms found that such a legal action is a suit of a
civil nature falling within the scope of Section 9 CPC.
6. There are very many instances in which a decree can be said
to be in favour of the parties to the litigation, irrespective of the fact whether
they are the plaintiffs or defendants in the suit. In such cases, the decrees
can be said to be capable of execution at the instance of any of the parties
to the suit. Examples of such decrees are those passed in suits for
partition, specific performance of a contract, suits under Section 92 CPC,
etc. I may hasten to add that the list is not exhaustive.
7. A Division Bench of the Calcutta High Court in Iswar Sridhab
Jew v. Jnanendra Nath (AIR 1960 Calcutta 718) has laid down the law
that where a scheme decree is executable and gives any rights to any
party, which can be enforced by execution, the fact that the person seeking
execution was formerly a defendant in the suit and a judgment debtor
under the decree cannot possibly prevent him from working out the decree
by execution. Learned Judges have drawn an analogy from a decree in a
suit for partition to arrive at the conclusion.
8. I may immediately refer to Section 28 of the Specific Relief Act,
1963 (in short, "Act") to vouchsafe the point that under certain
circumstances, even the defendant can seek indulgence of the court for
reliefs subsequent to the decree. Section 28 of the said Act deals with the
rescission of a contract after passing of a decree in a suit for specific
performance. It is well settled that a suit for specific performance does not
come to an end on passing of a decree. Section 28(1) of the Act
empowers a vendor or lessor to apply in the same suit in which the decree
is made to have the contract rescinded, if the purchaser or lessee, as the
case may be, does not, within the period allowed by the decree, or such
further period as the court may extend, pay the purchase money or other
sum. From this provision, it is clear that despite the vendor or lessor was a
defendant in the suit, such a person gets an opportunity to seek rescission
of the contract even after passing the decree. This principle has been
approved by the Bombay High Court as early as in 1923 in the decision in
Bai Karimabibi v. Abderehman Sayad Banu (AIR 1923 Bombay 26).
Learned Single Judge of the High Court of Patna in Kanu Charan Deep v.
Bimla Deep (II (1996) DMC 214) has held that a decree in a proceeding
under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal
rights is executable even at the instance of the respondent as the decree is
in favour of both the parties. Division Bench of the Allahabad High Court in
Ajudhia Prasad v. The U.P. Govt. through the Collector (AIR 1947 All.
390) has considered the scope of the expression "decree holder" occurring
in Section 2(3) CPC and held as follows:
"Now it is clear from this that a person in
whose favour an order capable of execution has
been made is also a decree holder. It is also evident
from this definition that a decree-holder need not be
a party to the suit. He may be 'any person'. ..........."
For the said reasons, there cannot be any dispute that the decree passed
in a suit for fixation of common boundary of the plaintiff and defendant,
being one intended to put an end to the dispute between the parties and to
achieve the object of common good, should be allowed to be executed by a
defendant in the suit too. According to me, the sum and substance of the
legal principles to be borne in mind regarding the terms "decree holder"
and "holder of a decree" can be stated like this. The term "decree holder"
denotes a person (i) in whose favour a decree has been passed (ii) in
whose favour an order capable of execution has been passed and (iii)
whose name appears in the decree, either as plaintiff or defendant, and the
following conditions are satisfied:
(a) the decree must be one capable of execution and
(b) the said person, by the terms of the decree itself or from its
nature, should be legally entitled to seek its execution.
Similarly, the term "holder of a decree" takes in not only the "decree
holder", but other rightful persons like transferee of a decree, legal
representative, etc.
9. Therefore, I am of the definite opinion that the view taken by
the executing court that a decree for fixing common boundary of the
properties of the plaintiffs and defendants cannot be demarcated in an
execution proceeding moved at the instance of the defendants is clearly
illegal and hence unsustainable.
In the result, the petition is allowed. The impugned order is set
aside. Court below is directed to take the execution petition No.66 of 2011
in O.S.No.342 of 2005 back to file and proceed with it in accordance with
the law.
A. HARIPRASAD, JUDGE.
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