Kamalavathy vs B. Subramaiah

The C.R.P.No.280 of 2001 is against E.P.No.336 of 1997 which has been filed against order dated 5.12.2000 directing the petitioner to

remove the illegal construction to the extent of 200 sq.ft. and to deliver vacant possession on or before 4.2.2001. C.R.P.No.601 of 2001

(C.R.P.S.R.No.99845 of 2000) has been filed against the order passed in Section 47 Petition in the same proceedings as referred to above. This

was filed with a delay of 787 days in filing the revision petition. Both the counsel have argued this civil revision petition also in view of the fact

C.R.P.. No. 280 of 2000 is only an order consequent to the dismissal of the Section 47 petition. The delay is condoned and the office is directed

to number the civil revision petition. This has since been numbered as C.R.P.No.601 of 2001.

The facts of the case are as follows: The petitioner is the defendant against whom the respondent filed a suit for mandatory injunction to remove

the illegal construction put up by the defendant to the extent of 200 sq.ft. on the southern side of the plaintiffs plot more particularly described in the

Schedule A herein abutting the northern side of the defendant''s plot, more particularly described in the Schedule B herein and for delivery of

vacant possession of the aforesaid 200 sq. ft. The suit was filed in 1989 and was numbered as O.S.No.4342 of 1989. An ex parte decree was

passed on 1.7.1994. It appears that an application to set aside the ex parle decree was filed along with which the written statement was also filed.

But this application was dismissed and the revision preferred to the High Court was also dismissed. Therefore, the ex parte decree dated 1.7.1994

has become final. These facts are not in dispute.

On 11.7.1997, the petitioner filed E.A.No.2660 of 1997 in E. P.No, 336 of 1997 on the ground that the decree was inexecutable because of

the vagueness and ambiguity in the decree. This application was dismissed. Against this a review was filed. This review was also dismissed. Against

the order in the review petition, C.R.P.No.3993 of 1999 was filed which was dismissed by this Court on 25.1.2000.. In this order, it was made

clear that the dismissal will not affect the petitioner''s right of challenge to the order in the main Section 47 petition dated 28.7.1998. It is thus that

the petitioner came to file C.R.P.No.601 of 2001 C.R.P.S.R.N0.99845 of 2001) with delay challenging the order passed in the Section 47

petition. These facts are also not in dispute.

After the dismissal of the Section 47 petition and before the filing of the civil revision petition the Execution / Court allowed the execution petition

directing the petitioner to comply with the decree for mandatory injunction. It was stated in the order by the Execution Court that since the Section

47 petition was not yet challenged by the judgment-debtor, the judgment-debtor was liable to remove the illegal construction. Against this,

C.R.P.No.280 of 2001 has been filed. If the order passed in the Section 47 petition namely E.A.No.2660 of 1997, dated 28.7.1998 is allowed,

then automatically the order passed in the execution petition will have to go. The judgment-debtor has therefore, filed these two revisions.

Mr. A. Venkatesan, learned counsel for the petitioner while admitting that the decree had become final would however, state that when the suit

relates to immovable property the plaintiff is bound to give a sketch or a plan with the plaint for the purpose of identifying the property. In this case,

that has not been done. He submitted that it is an admitted fact that the petitioner and the respondent are enjoying properties which are adjacent to

each other. While so, the reference to illegal construction in the decree of an extent of 200 sq.ft. is very ambiguous since it is not indicated where

exactly the encroachment of 200 sq.ft. and the illegal construction has been made. According to the learned counsel an ambiguous and vague

decree like this cannot be passed. Even in his petition u/s 41 he had stated that an Advocate Commissioner should be appointed to inspect the

property to ascertain whether the decree can be executed. He referred to the decree passed in the suit, which is as follows:

that the defendant do remove the illegal construction put up by the , defendant lo the extent of 200 sq.ft. on the southern side of the plaintiffs plot

more particularly described in the Schedule ''A'' hereunder abetting the Northern side of the defendant''s plot more particularly described in the

schedule B hereunder.''

According to him, the decree also does not make the position any better. He referred to the following decisions :

(1) Nagar Khan and Others Vs. Gopi Ram Agarwala, . In this case it was held that it is the duty of the Court to pass such decree, which can be

executed wilh precision.

(2) Rama Subudhi and Others Vs. Bhagirathi and Others, . In this case it was held that when the description of the land is vague and uncertain, the

Execution Court cannot deliver actual physical possession of the portion of the plot not specified in the decree.

(3) Marudanayagam Pillai v. P.K. Venkataswamt Naidu and others 1968 (2) MLJ 472. This was relied on for the proposition that when the

decree holder attempts to take any execution of the property that is not really included in the decree the judgment-debtor could apply u/s 47.

(4) Chutahru Bhagat and Others Vs. Hialal Sah and Others, . This was relied on to show that in a suit for declaration of title, and for possession

the plaintiff must indicate the identity of the portion claimed by him either by means of boundary or by means of a map.

The counsel for the respondent, Mr. R.S. Ranganathan, on the other hand submitted that the question regarding the identity of the property

could not now be agitated since the decree has already become final. According to him, an Advocate Commissioner was appointed by the Court

below and that Commissioner''s plans will itself indicate the portion which is referred to in the decree. Therefore, according to him the Court below

was quite right in dismissing the petition u/s 47. He also submitted that in an ex parte decree, Section 47 cannot- be filed and referred to Sk. Firoj

and another Vs. Sakhya Singha Mullick and others, .

The Court below had dismissed this application on the ground that in 1989 an Advocate Commissioner had gone to the property, inspected

with the help of an Engineer and assessed the encroachment and had also filed the report and also that the petition itself had been filed only with the

view to drag the proceedings.

The copy of the Advocate Commissioner''s Report has been produced before me wherein the Advocate Commissioner had stated that he had

engaged a Civil Engineer and inspected the property in the presence of the plaintiff and his son and also the defendant1 s son. The Advocate

Commissioner has marked out the encroached area and had also annexed the Engineer''s. Report. The license surveyor had measured the plots

and found that there was an encroachment. However,, it cannot be ignored that the Advocate Commissioner''s Report was not marked as an

exhibit and out of the nine documents that were marked through P.W.I, this report did not find a place. The plan annexed to the Advocate

Commissioner''s Report does not form part of the decree for the purpose of identifying the exact nature of encroachment and illegal construction.

The Court, below while rightly holding that the question of encroachment has become final, failed to consider the question regarding the exact

location of the illegal construction in the absence of either a plaint or a sketch accompanying the decree.

Section 47 of the CPC empowers the Court to determine all questions arising between the parties to the suit or their representatives relating to

the execution, discharge or satisfaction of the decree. It also makes it clear that the parties should not be driven to another suit and that the Court

itself should determine these questions. One of the questions raised by the petitioner is with regard to the specific location of the encroachment and

illegal construction. Mr. A. Venkatesan, learned counsel for the petitioner says that both the plots belonging to the petitioner and the respondent

are identical in measurement namely 60 feet east-west and 40 feet north-south. From the details of the Schedule given in the plaint it is clear that

the encroachment is somewhere along the southern boundary of the A Schedule property which is the northern boundary of the B Schedule

property. In view of the fact that the parties cannot raise any question relating to execution by a separate suit and that Section 47 is their only

recourse, the Court below ought to have considered all the questions raised by the petitioner. However, Section 47 cannot be used as a devise to

raise all the questions that the judgment-debtor could have raised but failed to. The decree was an ex parte decree and the written statement filed

by the petitioner alongwith the application to set aside the ex parte decree was not taken on file since the application to set aside the ex parte

decree was dismissed. The following questions cannot be raised again by virtue of the decree dated 1.7.1994 which admittedly has become final,

(1) that the petitioners had encroached into the respondent''s property to an extent of 200 sq. ft., (2) a licensed surveyor, had been appointed

before the suit who measured the plots and found that there was encroachment, (3), the petitioner had put up superstructure on the encroached

portion and this construction is illegal. The petitioner cannot be allowed to raise any doubts or challenge these issues. The only question that

remains to be answered is where exactly is the encroachment on the southern boundary of the respondent''s property. When the petitioner herself

had asked for an appointment of an Advocate Commissioner to ascertain the identity of the property the Court below ought to have done that and

decide the question. I am also conscious of the submissions made by the learned counsel for the respondent; that that was not the first time that an

ex parte was passed that there were two prior occasions and that they were set aside by the Court below and it is only on 1.7.1994 that the ex

parte decree that was passed was not set aside. He drew attention to the fact that a 1989 suit was decided finally only in 1994, 5 years later. He

also submitted that because of the resourcefulness of the petitioner, the successful respondent is unable to realize the fruits of the validly obtained

decree. The decree for mandatory injunction is one that has been validly obtained by the respondent. The petitioner cannot now challenge the

correctness or legality of the decision. The only question that he can raise is with regard to the execution of the decree discharge, satisfaction and

other questions relating to the same. In the interest of justice I think it would be proper to set aside the order dated 28.7.1998 made in

E.A.No.2660 of 1987 and the order dated 5.12.2000 made in E. P.No. 336 of 1997 and to remand the matter back to the X Assistant City Civil

Judge directing him to appoint an Advocate Commissioner who shall inspect the property with the assistance of an license surveyor who with

survey and measure ''A'' and ''B'' sent schedule papers and note down the encroachment and the illegal construction to enable the respondent to

execute the decree with certainty. The Court below is directed to take note, of the fact that it is not open to the petitioner to raise any questions

regarding the existence of encroachment and the illegal superstructure thereon. These questions have become final. The appointment of Advocate

Commissioner is only for the purpose of identifying the exact location of the encroachment so that the decree for mandatory injunction can be

executed without further delay. The grievance of the petitioner that if the decree had to be executed, as it stands, one would not know, which 200

sq.ft. was referred to by the plaintiff in the plaint has been answered. The exact encroachment can easily be identified by the Advocate

Commissioner with the help of the license surveyor.

With these observations, both the civil revision petitions are remanded to the Court below with direction to conclude the proceedings within

three months from this date. No costs. Consequently, the connected miscellaneous petitions are closed.