Kaushalya Rani and Another vs Bant Singh and Another

N.K. Kapoor, J.—This revision petition is against the order of the executing Court dated 30.9.1993 whereby objections of the judgment debtor have been allowed thereby dismissing the execution petition as fully satisfied.

Petitioners filed an execution application to execute the decree dated 23.2.1984 passed by Sub Judge I Class, The operative part of the decree reads as:

In view of my findings on the issues above, the suit of the Plaintiff for mandatory injunction for a direction to the Defendant to remove wall A and B as shown in site plan Ex.P3 is decreed with costs. Decree sheet be prepared accordingly. File be consigned.

Pursuance to the notice issued by the executing Court, judgment debtor put in appearance and filed an objection petition. judgment debtor alleged that the present execution application has been filed by the decree holder just to cause unnecessary harassment to the judgment debtor. It was further stated that wall A to B has in fact been demolished by the decree holder and that they have removed the malwa of the wall for the spot forcibly, for which the judgment debtors are entitled for compensation of the malwa removed. In view of the objections, the executing Court framed the following issues:

i) Whether the JDs have demolished the construction as per decree and the undertaking? If so its effect? OPDH.

ii) Relief.

The executing Court appointed one Shri Sheikhar Gupta as Local Commissioner to visit the spot and report if wall A to B and other construction raised upon the site in dispute has been demolished. Shri Sheikher Gupta submitted his report on 16.4.1990. As per his report, there were traces of wall at point marked A and B. He also submitted that there was other construction in the shape of beams, walls on the southern side without having any roof or doors and that there was one room on the western and southern corner while two rooms, were there in eastern side towards northern side. It was also reported that these three rooms with one gallery have been reported to be freshly constructed. The executing Court relying upon the report of the Local Commissioner came to the conclusion that since wall A to B is not in existence at the spot the judgment and decree passed by the Court stands satisfied. As regards the question of demolition of any construction, in view of the undertaking given by the Defendant/judgment debtor before the Court, it was held that such an undertaking cannot form part of the execution application and so the decree holder if is aggrieved can take appropriate steps in this regard.

The matter came for consideration before this Court on 25.3.1995. Noticing the request made by the counsel for the parties, an Advocate was appointed as a Local Commissioner to visit the spot and report whether there is any construction of any type on the disputed plot owned by the Petitioner-decree holder. The Local Commissioner visited the spot in the presence of the parties and has submitted his report dated 17.4.1995. The conclusion arrived at by the Local Commissioner reads as:

There is a wall marked by me as A-B of the height of 9'' and length of 40''9". In it, there are three spaces left for fixing the doors of the size of 5''11" and one of the size of 4''10", which according to the parties, belong to the Respondents. It causes hindrance in the proper enjoyment of the property of the Petitioners.

There is another wall belonging to the Respondents marked by me as C-D of the size of 9'' high and 5''10" in width. This wall also creates hindrance in proper enjoyment of the property by the Petitioners.

There is another wall marked by me as E-F, which also belongs to the Respondents and has been constructed in front of the wall of the room marked by me as Room No. 1 belonging to the Petitioners. By constructing this wall, the space left for fixing the door by the Petitioners in the room for ingress has been closed down by the Respondents. This wall block the ingress of the Petitioners to Room No. 1 for the side of the Northern street.

On the property in dispute, there are seven room sin all and two Deories, all constructed with bricks and mud belonging to the Petitioners.

No objection has been filed to this report of the Local Commissioner.

I have heard the learned Counsel for the parties and have perused the impugned order as well as the report submitted by the Local Commissioner. The Local Commissioner vide his report dated 17.4.1995 has infact made significant observation regarding property in dispute as per his spot inspection i.e. existence of wall AB which causes hindrance to the proper enjoyment of the property of the Petitioner. Similarly, there is another wall CD of the size of 9 high and 5''-10" in width, which is also causing hindrance in the proper enjoyment of the property of the Petitioner. Besides, these two there is ;another wall marked EF which has been constructed in front of the wall of the room marked as room No. 1 (as per the report of the Local Commissioner) which belongs to the Petitioner. By construction of this wall the space left for fixing the door to the room of the Petitioner for ingress has been closed from the side of the Northern street. Executing Court too noticed the encroachments made by the Respondents during the pendency of the suit but has expressed his helplessness in remedying the same as there is no reference in the judgment/decree with regard to the removal of walls CDEF. Accordingly, the executing Court, accepted the objections filed by the judgment debtor and declined to grant the required relief to the decree holder with a further observation that decree holder if agreed, can take appropriate proceedings to the Court of competent jurisdiction in this regard.

Petitioner-the decree holder filed a suit for permanent injunction directing the Respondents to demolish the wall A to B and for permanent injunction restraining them from making any further construction and from interfering with the plot as detailed in the heading of the plaint situated within the revenue estate of Village Dugri. During the pendency of the suit the Defendants raised some other unauthorised construction, grievance of which was made by the Petitioner-the Plaintiffs and the Court issued notice to the Respondents to explain as to why they be not restrained from raising any construction during the pendency of the suit. Pursuance to a notice issued by the Court, Respondents-defendants put in appearance and made statement to the effect that in case the suit of the Plaintiffs is decreed the so called unauthorised construction shall be removed. Statement of the party was recorded on 16.3.1992. Ultimately, the suit of the Plaintiffs was decreed. Since, no appeal was filed by same became final between the parties. judgment debtor in his objection has resisted the execution of the judgment and decree on the ground that the construction raised by him other than the wall A to B does not form part of the decree. So, even if it be taken that an undertaking had been given by the judgment debtor that the construction, if any, raised shall be removed by him in the event the suit of the Plaintiffs is decreed cannot form part of the decree and as the only remedy available to the Plaintiffs-the Petitioners is to take appropriate proceedings to get these encroachments removed. This contention was accepted by the executing Court. Admittedly, the Defendant-the judgment debtor made statement in the Court to the effect that in case of decretal of the suit, he would remove the encroachments and it is on the basis of this statement that no restraint order was passed by the Court. It is well settled principle of law that on account of reversal of a decree or order the party is to be restituted its possession as it would have occupied but for such decree or order. Section 144 of the CPC is based on this principle. The present case, though strictly speaking may not lie within the ambit of Section 144 CPC but all the same the same can be made basis to restore back the possession as it existed at the time of filing of the suit. This matter can be examined from another angle also i.e. inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court in terms of Section 151 Code of Civil Procedure. As observed earlier also, facts of the present case do not exactly fall within the ambit of Section 144 Code of Civil Procedure. Section 151 CPC deals with the inherent powers of the Court. Every Court is constituted for the purpose of doing justice according to law and is deemed to possess as a necessary corollary and has inherent in its very constitution, all such powers as may be necessary to do the right and to undo a wrong in the course of administration of justice. The only test to see whether the Court has not or has an inherent power to pass an order in any particular case, is whether it falls within or without the provisions of the statute. In case a case falls within the former, the Court cannot exercise its inherent powers u/s 151 Code of Civil Procedure. However, in the alter case, the Court has inherent power to pass such order as may be necessary to meet the ends of justice. The peculiar facts of the present case impell this Court to invoke its power u/s 151 CPC to undo the grave unjustice done to a decree holder. The Court can also be said to have committed a mistake or ommission in not referring to the other encroachments made by the Defendants-the objectors and for its removal. For such a lapse too direct the decree holder to file another suit or take any other proper proceedings for redressal of his grievances would almost amount to denying the justice to a party who has won in a Court of law. The Respondents-defendants neither in equity nor in law can be permitted to take benefit of an act which the Court has found to be illegal and unauthorised. Thus, while setting aside the order dated 30.9.1993, this Court invoking its inherent power u/s 151 CPC direct the executing Court to remove all such obstructions in the nature of walls AB, CD and EF (as noticed by the Local Commissioner appointed by this Court vide his report dated 17.4.1995) as well as the other encroachments made by the Respondents-the judgment debtor so as to prevent the Petitioner from the enjoyment of his property. Since the claim of the Petitioner was decreed way back on 23.2.1984, the executing Court is directed to expeditiously execute the decree as well as the direction given in this order without any further delay.