Bombay High Court

Iqbal Hussain Ali Hussain, L.Ts. ... vs Municipal Council, Purna on 7 October, 2015

Bench: V.K. Jadhav

                                          1                    WP 2073.2013.odt

              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                         BENCH AT AURANGABAD




                                                                              
                           WRIT PETITION NO.2073 OF 2013
                                        .....




                                                      
         1.      Iqbal Hussain s/o Ali Hussain,
                 Died, Through L.Rs.




                                                     
                 1/1) Syed Ahmed Hussain s/o Ali Hasan,
                      age 77 years, Occ. Agri and Business,
                      R/o Lal Mill Compound, Purna,
                      Taluka Purna, District Parbhani.




                                         
                 1/2) Syed Kamal Ahmed S/o Syed Ali Hussain
                      Dead, Through LR/1.            
                             
                                                        (Petitioner/
                                                        Orig. Plaintiff.)
                            
                 VERSUS

                 Municipal Council, Purna,
                 Through Its Chief Office,
                 Municipal Council, Purna
      


                 District Parbhani.                           Respondent.
   



                                       ...
                Mr. S.G.Chapalgaonkar, Advocate for the petitioner.
                   Mr. S.N.Rodge, Advocate for the Respondent.
                                       ...





                           CORAM : V. K. JADHAV, J.

...

DATE OF RESERVING THE JUDGMENT : 01.10.2015. DATE OF PRONOUNCING THE JUDGMENT :07.10.2015.

...

JUDGMENT :-

1. Rule. Rule made returnable forthwith. With the

consent of the parties, petition is taken up for final hearing

at the admission stage.

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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 ad-measuring 63R out of the land S.No.16

situated at Purna, Tq. Purna, District Parbhani to the

plaintiff and further restrained the defendant-Municipal

Council, Purna, from using the road passing through said

portion of the land ad-measuring 63R in any manner. Said

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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.

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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 re-measurement of the suit property alongwith

additional encroachment, if any, found on the spot. Said

application was allowed and re-measurement was carried out

on 5.6.2009 through the Taluka Inspector of Land Records,

Purna. Accordingly, re-measurement was carried out.

7. In the re-measurement, 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 ad-measuring 63 R. The Taluka

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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.

6 WP 2073.2013.odt

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, re-measurement 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

7 WP 2073.2013.odt

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 super-structure 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:-

                                            8                     WP 2073.2013.odt

                 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, Purna-Nanded road is situated east-west in direction

and the suit land S.No.16 is situated towards the southern

side of the road Purna-Nanded. 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 ad-measuring 63R out of S.No.16

has been encroached by Purna-Nanded road. Accordingly,

the learned judge of the trial court in the suit has concluded

that the defendant Municipal Council, Purna has made

9 WP 2073.2013.odt

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 ad-measuring 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 ad-measuring 63R

in any manner.

16. It further appears that, as per the re-measurement

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.

10 WP 2073.2013.odt

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 :-

11 WP 2073.2013.odt

"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.]"

12 WP 2073.2013.odt

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.

13 WP 2073.2013.odt

(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 super-structure 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

14 WP 2073.2013.odt

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 in-executable 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 decree-holder."

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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

super-structure made pendente lite. In the case in hand, the

decree of possession had become final. It was for the

Respondent-Municipal 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 in-executable driving him again for another round