Vs. B.G.Rajalingam, Respondent (supra), in paragraph
Nos.6 and 7 of the judgment, made following observations :
“6. Rule 35(3) of Order 21 itself manifests that when
a decree for possession of immovable property was
granted and delivery of possession was directed to be
done, the Court executing the decree is entitled to
pass such incidental, ancillary or necessary orders for
effective enforcement of the decree for possession.
That power also includes the power to remove any
obstruction or superstructure made pendente lite.
The exercise of incidental, ancillary or inherent power
is consequential to deliver possession of the property
in execution of the decree. No doubt, the decree does
not contain a mandatory injunction for demolition. But
when the decree for possession had become final and
the judgment debtor or a person interested or claiming
right through the judgment debtor has taken law in
his hands and made any construction of the property
pending suit, the decree holder is not bound by any
such construction. The relief of mandatory injunction,
therefore, is consequential to or necessary for
effectuation of the decree for possession. It is not
necessary to file a separate suit when the
construction was made pending suit without
permission of the court. Otherwise, the decree
becomes inexecutable driving the plaintiff again for
another round of litigation which the Code expressly
prohibits such multiplicity of proceedings.
7. It is also not necessary that the tenant should be
made party to the suit when the construction was
made pending suit and the tenants were inducted into
possession without leave of the Court. It is settled law
that a tenant who claims title, right or interest in the
property through the judgment debtor or under the
colour of interest through him, he is bound by the
decree and that, therefore,the tenant need not
econominee be impleaded as a party defendant to the
suit nor it be an impediment to remove obstruction put
up by them to deliver possession to the decree. What
is relevant is only a warning by the bailiff to deliver
peaceful possession and if they cause obstruction, the
bailiff is entitled to remove the obstruction; cause the
construction demolished and deliver vacant
possession to the decree holder in terms of the decree.
Thus considered, we hold that the High Court and the
executing Court have not committed any error of law
in directing demolition of shops and delivery of the
possession to the decreeholder.”
22. The High Court of Andhra Pradesh in the case of
Dongala Venkaiah and another Vs. Dongala Raji Reddy
(supra) relying upon the Judgment of the Supreme Court in
the case of B.Gangadhar, Petitioner Vs. B.G.Rajalingam,
Respondent, reported in AIR 1996 Supreme Court 780
has made similar observations.
23. It is thus clear that the Court executing the decree is
entitled to pass such incidental, ancillary, necessary orders
for effective enforcement of the decree for possession. This
power also includes the power to remove any obstruction, or
superstructure made pendente lite. In the case in hand, the
decree of possession had become final. It was for the
RespondentMunicipal Council, Purna not to allow any such
illegal constructions raised pendente lite by the side of the
road. Thus, the petitioner/decree holder is not bound by any
such illegal constructions. It is not necessary for the
petitioner to file a separate suit, otherwise, the decree
becomes inexecutable driving him again for another round
of litigation which the Code expressly prohibits such
multiplicity of litigation.
24. In the given set of facts, it would be rather wise to say
that the approach of the Executing Court to some extent
disallowing the amendment, which is in the nature of
traveling beyond the decree, may be correct, but, certainly
the executing court ought to have taken care to execute the
decree by directing the removal of the said illegal
constructions by exercising the powers of Order XXI Rule 35
(3) of Code of Civil Procedure.
25. In light of the above discussion and observations made
by the Apex Court in case of B.Gangadhar, Petitioner Vs.
B.G. Rajalingam, Respondent, reported in AIR 1996
Supreme Court 780 (supra), Writ Petition is disposed of
with directions to the Executing Court to execute the decree
by removing the illegal construction carried out over the
additional area of 12R as shown in the map Exh.123, and
shall order delivery of vacant possession of the property
under execution to the petitioner within a period of three (03)
months from the date of this order.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2073 OF 2013
Iqbal Hussain s/o Ali Hussain,
VERSUS
Municipal Council, Purna,
CORAM : V. K. JADHAV, J.
DATE OF PRONOUNCING THE JUDGMENT :07.10.2015.
Citation;2016(2) ALLMR152
2. The petitioner/original decree holder has filed an
application at Exh.125 before the Executing court seeking
amendment in Regular Darkhast No.02/2004. The learned
Civil Judge, Jr. Division, Purna, by its impugned order dated
31.07.2012 rejected the said application. Hence, this writ
petition.
3. Brief facts giving rise to the present writ petition, are
as under :
The petitioners are the legal representatives of the
original plaintiff in Regular Civil Suit No.12/1997 (old R.C.S.
No.234/1989). The said suit was instituted for recovery of
possession and decree of perpetual injunction against the
respondent/original defendant Municipal Council, Purna in
respect of the suit property.
4. The trial court, by its judgment and order dated
15.1.2003, partly decreed the suit and thereby directed the
Respondent/original defendant to hand over the possession
of the land admeasuring 63R out of the land S.No.16
situated at Purna, Tq. Purna, District Parbhani to the
plaintiff and further restrained the defendantMunicipal
Council, Purna, from using the road passing through said
portion of the land admeasuring 63R in any manner. Said
decree has attained finality. Consequently, the petitioner
filed Regular Darkhast No.2/2004 before the learned Civil
Judge Jr. Division, Purna.
5. During the course of the execution of the decree, the
executing court was pleased to issue possession warrant.
Some strangers had approached this Court by filing the Writ
petition No.6258/2006 praying therein to stay the execution
of the decree on the ground that they are the persons likely
to be adversely affected by the execution of the decree. They
were claiming to be in possession over some portion of the
property through Municipal Council. However, this Court
rejected the said writ petition with observations that
strangers to the decree are entitled to file the appropriate
application before the executing Court under the provisions
of the Code of Civil Procedure. Thus, said strangers to the
decree filed an application before the Executing Court about
their possession over some portion of the property under
execution i.e. precisely on the side portion of the road
constructed by the Municipal Council. The learned Judge of
the executing court, after considering their objections and
reply filed by the decree holder, rejected said applications.
6. Thereafter, executing court was pleased to issue the
warrant for delivery of possession in favour of the plaintiff as
per the decree. Furthermore, necessary directions were also
issued to the Taluka Inspector of Land Records, Purna to
mark the property for execution and carry out the necessary
measurement for that purpose. Accordingly, the Taluka
Inspector of Land Records has carried out the measurement
on 25.6.2008 and noted that the suit road has been
expanded from both sides after previous measurement of the
year 1986 relied upon in the suit and there is some
encroachment in the periphery of the suit property. The
Taluka Inspector of Land Records submitted its report dated
15.7.2008 to the Executing Court. The petitioner has,
therefore, moved an application before the executing court to
carry remeasurement of the suit property alongwith
additional encroachment, if any, found on the spot. Said
application was allowed and remeasurement was carried out
on 5.6.2009 through the Taluka Inspector of Land Records,
Purna. Accordingly, remeasurement was carried out.
7. In the remeasurement, it was found that actual land
to the extent of 75R out of S.No.16 owned by the
petitioner/decree holder is covered by the encroached area
including the suit land admeasuring 63 R. The Taluka
Inspector of Land Records has drawn a map showing
additional encroachment, which is placed at Exh.123
alongwith panchnama at Exh.124 on the record of the
executing Court.
8. In pursuance of the aforesaid contents of the
panchnama and map drawn by the Taluka Inspector of Land
Records, Purna, the petitioner filed an application to issue
possession warrant to the extent of 75R, however, the
executing Court by order dated 23.9.2011 on the application
at Exh.114 directed the petitioner to examine the Taluka
Inspector of Land Records, Purna to prove the contents of
the map. It has also observed in the order that, prayer made
in the application Exh.114 for issuing possession warrant as
per the said map would be considered after leading the
necessary evidence.
9. The petitioner, in pursuance of the aforesaid order,
examined the Taluka Inspector of Land Records, Purna at
Exh.122. Said witness has testified the details of the
measurement carried out by him and accordingly, the
contents of the map proved. Same is marked at Exh.124.
10. Accordingly, the petitioner, in view of the aforesaid
evidence and in pursuance of the earlier order passed by the
executing court on the application Exh.114, moved an
application at Exh.125 dated 24.1.2012 praying thereby
permission to carry out the amendment in the execution
petition, incorporating the amendment in the claim clause as
well as the prayer clause in terms of the measurement map
Exh.123. However, said application came to be rejected by
the impugned order dated 31.7.2012 with the observation
that the petitioner cannot travel beyond the decree. Hence,
this writ petition.
11. The learned counsel for the petitioner submits that as
per the order of the executing court, remeasurement was
carried out through the Taluka Inspector of Land Records,
Purna, and map alongwith panchnama was placed before the
executing court. It is, therefore, necessary to incorporate the
changes recorded during the actual execution of the decree
in the execution petition. The learned counsel further
submits that, merits of the proposed amendment cannot be
gone into while considering the application for amendment.
The learned counsel further submits that, the learned judge
of the executing court has not considered this material
aspect and rejected the prayer of amendment in the
execution petition. The learned counsel further submits
that, the petitioner is about 77 years of age and is fighting
for execution of the decree passed in the year 2003.
Rejection of the application for amendment has virtually
stalled the executing proceedings itself.
12. The learned counsel for the petitioner, in the alternate,
submits that, the Court executing the decree is entitled to
pass such incidental, ancillary or necessary orders for
effective enforcement of the decree for possession in view of
the provisions of Order XXI, Rule 35(3) of the Code of Civil
Procedure. These powers also includes the power to remove
any obstruction or superstructure made pendente lite. The
learned counsel further submits that though decree does not
contain mandatory injunction for demolition, but when the
decree had attained the finality, the decree holder is not
bound by any such construction, and it is not necessary to
file a separate suit when the construction by way of illegal
encroachment was made pending the suit/decree without
permission of the court.
13. The learned counsel for the petitioner, in support of his
submissions placed reliance on following judgments:
I] B.Gangadhar, Petitioner Vs.
B.G.Rajalingam, Respondent, reported in
AIR 1996 Supreme Court 780.
II] Dongala Venkaiah and another Vs.
Dongala Raji Reddy, reported in AIR
2007 Andhra Pradesh 344.
14. The learned counsel for respondent submits that in
the execution proceedings the executing Court has no right
to travel beyond the decree. The learned counsel further
submits that the learned Judge of the executing court has
therefore rightly rejected the application for amendment in
the execution petition Exh.125, the Writ Petition is, therefore,
devoid of any merits and thus liable to be rejected.
15. On careful perusal of the map Exh.123, it appears
that, PurnaNanded road is situated eastwest in direction
and the suit land S.No.16 is situated towards the southern
side of the road PurnaNanded. It appears from the
judgment and decree passed in the suit that the
measurement was carried out in respect of the suit land on
6.2.1986 and 7.2.1986 and it was revealed in the said
measurement that land admeasuring 63R out of S.No.16
has been encroached by PurnaNanded road. Accordingly,
the learned judge of the trial court in the suit has concluded
that the defendant Municipal Council, Purna has made
encroachment upon 63R land out of S.No.16 and accordingly
recorded findings to issues No.1 and 2 in the affirmative.
Consequently, in the operative order of the suit, the
defendant Municipal Council, Purna is directed to hand over
the possession of the land admeasuring 63R out of the land
S.No.16 as shown in the said map and further the Municipal
Council, Purna is also restrained from using the said road
passing through the said portion of land admeasuring 63R
in any manner.
16. It further appears that, as per the remeasurement
map Exh.123 carried out by the Taluka Inspector of Land
Records, Purna as per the directions given by the executing
court and as per the testimony of the Taluka Inspector of
Land Record (Exh.122), towards the southern side of road,
the encroachment to the extent of 12R by making
constructions like hotel etc., found in existence. It also
appears that the Taluka Inspector of Land Record, Purna has
also carried out panchnama to that effect and said
panchnama is also marked at Exh.124 before the executing
court. It is needless to repeat here that, the said
encroachment over the additional area of 12R is raised
pendente lite. The same obviously prevents the passage or
right to access to the property under execution.
17. It further appears that, those encroachers rather to
say persons raised the construction over the said portion of
additional area of 12R by illegal means approached this
Court by filing the writ petition No.6258/2006 and this
Court had rejected their writ petition with observation that
they are entitled to file an appropriate application before the
Executing Court under the provisions of Code of Civil
Procedure. So far as said obstruction caused by those
strangers are concerned, they had approached the executing
court by filing their objection petition under Order XXI Rule
97(1) of the Code of Civil Procedure. The learned Judge of
the executing Court, after considering their objections and
reply filed by the decree holder, rejected the said
applications.
18. It is well settled that, no action will lie on an
executable judgment, for the execution is only remedy on
such a judgment. Main principle underlying Section 47 is
that, matter relating to execution, discharge or satisfaction of
the decree and arising between the parties or their
representatives should be determined in the execution
proceedings and not by separate suit. Section 47 of the Civil
Procedure Code reads as under :
“S.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
representatives, and relating to the execution,
discharge or satisfaction of the decree shall be
determined by the Court executing the decree and not
by a separate suit.
(2) [omitted by Act 104 of 1976]
(3) Where a question arises as to whether any person
is or is not the representative of a party, such
question shall, for the purposes of this section, be
determined by the Court.
[Explanation I. For the purposes of this section, a
plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed
are parties to the suit.
Explanation II. (a) For the purposes of this section, a
purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in
which the decree is passed; and
(b) All questions relating to the delivery of possession
of such property to such purchaser or his
representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of
the decree within the meaning of this section.]”
19. It appears that the question to be determined by the
Court executing the decree is very wide and comprehensive/
exclusive jurisdiction has been conferred upon the executing
court in respect of all matters relating to the execution,
discharge or satisfaction of the decree, irrespective of
whether such question arises before or after the decree has
executed. It provides an inexpensive and expeditious remedy
to the parties before the Court to obtain adjudication of all
questions relating to the execution of the decree.
20. It is thus, utmost necessary to refer the provisions of
Order XXI Rule 35 which reads as under :
35. Decree for immovable property.
(1) Where a decree is for the delivery of any immovable
property, possession thereof shall be delivered to the
party to whom it has been adjudged, or to such person
as he may appoint to receive delivery on his behalf,
and, if necessary, by removing any person bound by
the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of
immovable property, such possession shall be
delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming by
beat of drum, or other customary mode, at some
convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to
be delivered and the person in possession, being
bound by the decree, does not afford free access, the
court, through its officers, may, after giving reasonable
warning and facility to any woman not appearing in
public according to the customs of the country to
withdraw, remove or open any lock or bolt or break
open any door or do any other act necessary for
putting the decree holder in possession.
21. The Apex Court in a case of B.Gangadhar, Petitioner
Vs. B.G.Rajalingam, Respondent (supra), in paragraph
Nos.6 and 7 of the judgment, made following observations :
“6. Rule 35(3) of Order 21 itself manifests that when
a decree for possession of immovable property was
granted and delivery of possession was directed to be
done, the Court executing the decree is entitled to
pass such incidental, ancillary or necessary orders for
effective enforcement of the decree for possession.
That power also includes the power to remove any
obstruction or superstructure made pendente lite.
The exercise of incidental, ancillary or inherent power
is consequential to deliver possession of the property
in execution of the decree. No doubt, the decree does
not contain a mandatory injunction for demolition. But
when the decree for possession had become final and
the judgment debtor or a person interested or claiming
right through the judgmentdebtor has taken law in
his hands and made any construction of the property
pending suit, the decreeholder is not bound by any
such construction. The relief of mandatory injunction,
therefore, is consequential to or necessary for
effectuation of the decree for possession. It is not
necessary to file a separate suit when the
construction was made pending suit without
permission of the court. Otherwise, the decree
becomes inexecutable driving the plaintiff again for
another round of litigation which the Code expressly
prohibits such multiplicity of proceedings.
7. It is also not necessary that the tenant should be
made party to the suit when the construction was
made pending suit and the tenants were inducted into
possession without leave of the Court. It is settled law
that a tenant who claims title, right or interest in the
property through the judgment debtor or under the
colour of interest through him, he is bound by the
decree and that, therefore,the tenant need not
econominee be impleaded as a party defendant to the
suit nor it be an impediment to remove obstruction put
up by them to deliver possession to the decree. What
is relevant is only a warning by the bailiff to deliver
peaceful possession and if they cause obstruction, the
bailiff is entitled to remove the obstruction; cause the
construction demolished and deliver vacant
possession to the decree holder in terms of the decree.
Thus considered, we hold that the High Court and the
executing Court have not committed any error of law
in directing demolition of shops and delivery of the
possession to the decreeholder.”
22. The High Court of Andhra Pradesh in the case of
Dongala Venkaiah and another Vs. Dongala Raji Reddy
(supra) relying upon the Judgment of the Supreme Court in
the case of B.Gangadhar, Petitioner Vs. B.G.Rajalingam,
Respondent, reported in AIR 1996 Supreme Court 780
has made similar observations.
23. It is thus clear that the Court executing the decree is
entitled to pass such incidental, ancillary, necessary orders
for effective enforcement of the decree for possession. This
power also includes the power to remove any obstruction, or
superstructure made pendente lite. In the case in hand, the
decree of possession had become final. It was for the
RespondentMunicipal Council, Purna not to allow any such
illegal constructions raised pendente lite by the side of the
road. Thus, the petitioner/decree holder is not bound by any
such illegal constructions. It is not necessary for the
petitioner to file a separate suit, otherwise, the decree
becomes inexecutable driving him again for another round
of litigation which the Code expressly prohibits such
multiplicity of litigation.
24. In the given set of facts, it would be rather wise to say
that the approach of the Executing Court to some extent
disallowing the amendment, which is in the nature of
traveling beyond the decree, may be correct, but, certainly
the executing court ought to have taken care to execute the
decree by directing the removal of the said illegal
constructions by exercising the powers of Order XXI Rule 35
(3) of Code of Civil Procedure.
25. In light of the above discussion and observations made
by the Apex Court in case of B.Gangadhar, Petitioner Vs.
B.G. Rajalingam, Respondent, reported in AIR 1996
Supreme Court 780 (supra), Writ Petition is disposed of
with directions to the Executing Court to execute the decree
by removing the illegal construction carried out over the
additional area of 12R as shown in the map Exh.123, and
shall order delivery of vacant possession of the property
under execution to the petitioner within a period of three (03)
months from the date of this order.
26. Rule is made absolute in above terms. In the
circumstances, there shall be no order as to costs.
( V.K. JADHAV, J. )
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