Madras High Court
Murugadoss vs Govindasamy (Died) on 7 July, 2023
C.R.P.(NPD) Nos.3965 & 3966 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.(NPD) Nos.3965 & 3966 of 2016
and C.M.P.No.20109 of 2016
Murugadoss ... Petitioner in both CRPs
vs
1.Govindasamy (Died)
2.The Commissioner
Nagapattinam Municipality,
Nagapattinam Taluk & District
3.G.Dhanalakshmi
4.Susindran
5.Srinivasan
6.Thatchayani ... Respondents in both CRPs
(R3 to R6 brought on record as LRs of the deceased R1
viz. Govindasamy vide Court order dated 3.7.2023
made in CMP.Nos.4357, 4359, 4360 & 4363 of 2023
in CRP.Nos.3965 & 3966 of 2016 by this Court)
Prayer in CRP(NPD)No.3965 of 2016: Petition filed under Article 227
of the Constitution of India against the order and decree in Un numbered
E.A.No. .... of 2016 in E.P.No.4 of 2012 in O.S.No.310 of 2005 dated
03.10.2016 on the file of District Munsif Court, Nagapattinam.
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C.R.P.(NPD) Nos.3965 & 3966 of 2016
Prayer in CRP(NPD)No.3966 of 2016: Petition filed under Article 227
of the Constitution of India against the order and decree in E.P.No.4 of
2012 in O.S.No.310 of 2005 dated 04.11.2016 on the file of District
Munsif Court, Nagapattinam.
(In both CRPs)
For Petitioner: Mr.K.S.Viswanathan, Senior Counsel
for Mr.M.S.Palaniswamy
For Respondents: R1 – Died
R2 – Given up
Mr.M.C.Swamy (for R3 to R6)
COMMON ORDER
These two Civil Revision Petitions arise against an order passed by
the learned District Munsif Court at Nagapattinam rejecting an
application under Section 47 at the unnumbered stage on 28.09.2016.
After rejecting the Execution application, the learned Judge had ordered
demolition of the E.P. schedule mentioned property. Against the order
rejecting the Section 47 application, CRP(NPD)No.3965 of 2016 has
been preferred and as against the order passed by the Court directing
demolition and delivery, CRP(NPD)No.3966 of 2016 has been filed.
2. I heard Mr.K.S.Viswanathan, learned Senior Counsel for
Mr.M.S.Palaniswamy, learned counsel appearing for the petitioner and
Mr.M.C.Swamy, learned counsel appearing for the respondents.
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C.R.P.(NPD) Nos.3965 & 3966 of 2016
3.The point that is agitated by Mr.Viswanathan is that as per
paragraph No.13 of the judgment in O.S.No.310 of 2005, the Court has
accepted that the encroached area is only the yellow marked portion in
the Advocate Commissioner's report. He would further submit that all
that the plaintiff is entitled to is only 126 ft. and not 135 ft by 1½ as
claimed by him in the Execution Petition.
4.Mr.M.C.Swamy, learned counsel appearing for the respondents
would submit that as per the decree, he is entitled for the property
situated in Survey No.2841. He states out of total extent of 11,607 area in
the said survey number, he is entitled to 5851 sq. ft. In this 5851 sq. ft. an
extent of 202 sq. ft. had been encroached by the defendant and he would
submit he is entitled to that extent.
5.I have carefully considered the argument of either side. I am
afraid that there is absolutely no merit in the Section 47 application filed
by the judgment debtor and it had been rightly rejected by the learned
District Munsif.
6.This is the third round of litigation before this Court. In the first
round as against the appeal preferred from the judgment and decree in
A.S.No.14 of 2009 dated 08.03.2010 which had confirmed the decree in
O.S.No.310 of 2005 dated 31.07.2009, the argument of the learned
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C.R.P.(NPD) Nos.3965 & 3966 of 2016
counsel for the petitioner at that time is extracted hereunder:-
'10. Admittedly, the appellant/first defendant got his property
under Ex.B3 and as per the recital in Ex.B3 he purchased the entire
extent in T.S.No.2842 measuring 4966 sq.ft. and 389 sq.ft. in
T.S.No.2841 and the total extent purchased under Ex.B3 is 5355 sq.ft.
In addition to that, the east west and north south measurement is also
given and as per Ex.B3 the appellant/first defendant is entitled to 35
sq.ft. on the north south side and 153 sq.ft. on the east west side.
Therefore with regard to the specific measurements given in the sale
deed, we will have to see whether the appellant/first defendant is
entitled to any land beyond that area given under Ex.B3. It is not the
case of the appellant/first defendant that the first respondent/plaintiff
has encroached upon any land on the northern side and the only
contention is that the yellow marked portion shown in the
commissioner's plan also belongs to him. The Advocate Commissioner
measured the properties with the help of Taluk Surveyor and as per the
commissioner's report the appellant/first defendant is having area 35'
north south on both sides and the yellow marked portion lies south of
the portion to which the appellant is not entitled to. Therefore, it has
been made clear by the report of the commissioner as per the plan
prepared by the Taluk surveyor the yellow marked portion does not
form part of the property purchased by the appellant under Ex.B3.
There is no dispute that the land situated in S.No.2841 was purchased
by the first respondent/plaintiff under two sale deeds dated 20.2.1999
and 30.2.1990 and he purchased the property of an extent of 5851 sq.ft.
in T.S.No.2841. However in O.S.No.180/1996 it was held that the
appellant/first defendant is entitled to only 35 sq.ft. north and south.'
7.The Court was not convinced to the said argument and had
dismissed the Second Appeal. Thereafter, the decree was put into
execution before the Executing Court.
8.The E.P. was taken on file as E.P.No.4 of 2012. A bailiff who
visited the property submitted a report contrary to the decree and had
stated that the extent of encroachment is already available with the
plaintiff and therefore the extent available with the defendant is not an
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C.R.P.(NPD) Nos.3965 & 3966 of 2016
encroachment at all. This issue was specifically dealt with by this Court
in paragraph Nos.7 and 8 in CRP(NPD)Nos.220 and 221 of 2015 dated
06.09.2016. Paragraph 6, 7 and 8 are extracted hereunder:
'6. On a perusal of the report filed by the Bailiff, it is clear
that the Bailiff has sat over the decree passed by the trial Court and
virtually given his report contrary to the Judgment and decree passed
by the trial Court. The duty of the Bailiff is to execute the decree
passed by the trial Court and he cannot give a finding that there is no
encroachment and that the decree cannot be executed. When the
decree passed by the trial Court is specific with regard to the
measurement and when there is no ambiguity in the decree passed by
the trial Court, the Executing Court erroneously took into
consideration the report filed by the Bailiff and closed the Execution
Petition.
7. As per clause 1 and 2 of the decree passed in O.S.No.310 of
2005, the plaintiff is entitled to an extent of 135 x 1 ½ ft on the north
of his mother Wall. Admittedly, the plaintiff has not put up any
construction on the north of his mother Wall, after 1996. Therefore,
as per the decree, the plaintiff is entitled to get the decree executed in
respect of an extent of 135 x 1 ½ ft on the north of his mother Wall.
8. Contrary to the decree passed by the trial Court, the Bailiff
has given his report stating that the decreed portion is in possession
of the plaintiff and that the plaintiff did not agree to demolish the said
portion. When the decree was passed as against the 1 st defendant,
the Bailiff had gone beyond the scope of the decree and has filed a
report stating that the encroached portion is in possession of the
plaintiff and therefore, the decree cannot be executed. When the
parties themselves admit that the plaintiff had not put up any
construction on the north of the mother Wall after 1996 and when the
decree in O.S.No.310 of 2005 was passed on 31.07.2009 in respect of
the suit property to an extent of 135 x 1 ½ ft in the north of the mother
Wall, the Executing Court should have rejected the report filed by the
Bailiff and should have taken appropriate action as against the Bailiff
for filing the report contrary to the decree passed by the trial Court.
When the appellate Courts including this Court had confirmed the
decree passed by the trial Court, the Bailiff had reversed the findings
of the trial Court as well as the decree passed by it. As already stated,
when there is no confusion in the decree passed by the trial Court, the
Executing Court should have executed the decree as per the terms of
the decree. The Executing Court should not have closed the Execution
Petition. The closure of the Execution Petition is erroneous, which is
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C.R.P.(NPD) Nos.3965 & 3966 of 2016
liable to be set aside.'
9.The Civil Revision Petition preferred by the decree holder was
allowed and remitted to the trial Court for fresh disposal. Taking up the
matter after the remand, the judgment debtor filed an application in
unnumbered E.A.SR......... of 2016 in E.P.No.4 of 2012 in O.S.No.310 of
2005. The issues raised before the learned District Munsif where those
which were submitted before me by Mr.Viswanathan, learned Senior
Counsel appearing for the judgment debtor.
10.The Executing Court by an order dated 03.10.2016 rejected the
application under Section 47 on the ground that where the decree has
been passed by the trial Court is specific with regard to the measurement
and there is no ambiguity as regards the decree passed by the trial Court,
the Executing Court cannot go behind the decree and it is duty bound to
execute as it is.
11.Mr.Viswanathan, would submit that by virtue of paragraph
No.13 of the order, there is an ambiguity as to whether the petitioner is
actually entitled to the extent declared by the Court or whether it is the
yellow mark portion as marked by the Advocate Commissioner.
12.I must state no exception can be taken to the view formed by
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C.R.P.(NPD) Nos.3965 & 3966 of 2016
the Executing Court.
13.The Executing Court must execute the decree as it stands and is
not entitled to interpret or interfere with the same. The Civil Revision
Petitioner had raised this plea before the first appellate Court as well as
the second appellate Court. The same had been rejected by this Court.
That puts an end to the argument that there is no encroachment made by
the judgment debtor but the alleged encroached portion is still within the
fold of the plaintiff's property. If the liberty as pleaded by the learned
Senior Counsel is permitted, then it will amount to the Executing Court
sitting on appeal over the judgment and decree of this Court which
obviously is impermissible.
14.The extract of the order in the previous Civil Revision Petition
shows that the bailiff attempted to set at nought the decree passed in
O.S.No.310 of 2005. The bailiff is a ministerial officer, who has no such
powers and it was in those circumstances the order have been set aside.
15.The question whether the yellow mark portion is the
encroached area or the portion marked in the schedule is the encroached
area is not a matter for executability and in such circumstances, an
application under Section 47 is not maintainable and therefore, it had
been rightly rejected by the Executing Court.
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C.R.P.(NPD) Nos.3965 & 3966 of 2016
16.Turning to the next point that the decree holder is not entitled to
anything more than 126 ft., I am afraid even here and not with
Mr.Viswanathan. This is for the simple point the trial Court, lower
appellate Court as well as second appellate Court had consistently held
that the plaintiff is entitled to 135 ft. x 1½ ft. which equals to around 202
sq. ft. When this finding has attained finality, I cannot in as revision
sitting an order passed by the Executing Court re-write the judgment. If I
agree with Mr.Viswanathan, it will exactly be that situation.
17.Apart from that, I went through the decree to satisfy myself if it
is clear. When the property has been properly described in the schedule
and there is no dispute in the identity in the stand of the parties when
they went for trial, to raise a dispute on identity at the time of execution
is nothing, but an attempt to delay the proceedings. Therefore, there is no
issue on executability or discharge or satisfaction in the present matter.
Therefore, the Civil Revision Petition filed against the dismissal of the
Section 47 application deserves to be dismissed and its accordingly
dismissed.
18.In so far as the other Civil Revision Petition is concerned, it is
consequent to the order passed in the unnumbered E.P. and therefore
separate orders need not be passed. The suit being of the year 2005, the
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C.R.P.(NPD) Nos.3965 & 3966 of 2016
Executing Court is directed to expedite the proceeding and dispose it of
at the earliest in any event before 03.10.2023 and submit a report in
compliance thereof to this Court. No costs. Consequently, connected
miscellaneous petition is closed.
07.07.2023
Index:Yes/No
Speaking/Non-speaking order
Neutral Citation:Yes/No
vs
To
The District Munsif Court,
Nagapattinam.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) Nos.3965 & 3966 of 2016
V. LAKSHMINARAYANAN,J.
vs
C.R.P.(NPD) Nos.3965 & 3966 of 2016
and C.M.P.No.20109 of 2016
07.07.2023
https://www.mhc.tn.gov.in/judis
