Mohanlal vs Mangalan

K. Harilal, J.—The revision petitioner is the decree holder in E.P. No. 120/2010 in O.S. No. 800/2003 on the files of the Additional Munsiff''s Court, Kollam. The above petition was filed under Order XXI Rule 32 of the Code of Civil Procedure, praying for prosecuting the respondent/Judgment Debtor for the violation of the decree passed against him in the above Original Suit, by detaining him in civil prison and attaching his property. The suit was one for declaration of an easement right of way and injunction restraining the defendant from causing obstruction to the enjoyment of C schedule pathway or from committing any act of waste in the said pathway. The suit was decreed as prayed for and confirmed in the appeal filed by the Judgment Debtor. Even though a Second Appeal was also pending before this Court challenging the concurrent findings of the courts below, no stay had been granted against the execution of the decree.

In the Execution Petition, it is alleged that after the passing of the decree on 28/2/2006 and dismissal of the Appeal Suit on 17/7/2009, certain acts of wastes have been committed in the C schedule pathway and obstructed the enjoyment of the C schedule pathway by planting trees in the way. In 2009 December, the Judgment Debtor had dug earth and removed the soil from the plaint C schedule way adjacent to the plaint A schedule property and thereby caused obstruction to the vehicular access of the decree holder and that the decree holder when tried to fill up the same, the Judgment Debtor prevented him and that the Judgment Debtor has removed the ''Thidil'' on the eastern side of the plaint C schedule way and planted ''Kattu vazha'' plants which grew up and minimised the width of the plaint C schedule way and did not permit the decree holder to cut down the said plants or to remove leaves fell from the trees in the Judgment Debtor''s property for the purpose of purposefully obstructing the decree holder from using the plaint C schedule pathway. Further, for the purpose of obstructing the vehicular access of the decree holder through the plaint C schedule way, the Judgment Debtor has not permitted the decree holder to fill up trench dug for laying the BSNL cable and is obstructing the decree holder from filling up the same and that the said way has become inconvenient for the usage due to the falling of leaves from the trees standing in the adjacent Judgment Debtor''s property and that he did not permit the decree holder to cut down the said plants or to remove the leaves fell from the trees in the Judgment Debtor''s property and that the same was done purposefully for obstructing the decree holder from using the plaint C schedule way. That apart, the Judgment Debtor, after the judgment and decree, had planted a ''Murukku'' tree adjacent to the eastern boundary of the plaint C schedule way and that the same now causes obstruction to the enjoyment of the plaint C schedule way and that the Judgment Debtor purposefully has not conceded to the demand made by the decree holder to cut down the said tree.

The Judgment Debtor filed an objection denying all the above allegations. He contended that the plaint C schedule pathway has never come into existence and the decree holder has never used plaint C schedule for his access to his property and hence there is neither any ground nor any reason for the decree holder to allege that the Judgment Debtor has wilfully violated the said judgment and decree. Throughout the objection he reiterated that plaint C schedule pathway was an imaginary one which has never come into existence. He specifically denied the allegation that he has not allowed the decree holder to cut and remove the branches of the tree hanging over the pathway. It is also contended that the pathway noted by the Commissioner in the Execution Petition is not the C schedule pathway which was scheduled in the decree. According to him, he has never obstructed the decree holder from using the pathway for the egress and ingress to the plaint A and B schedule properties.

The learned counsel for the revision petitioner advanced arguments assailing the findings whereby the court below dismissed the application. According to him, the finding of the court below that the pathway noted by the Commissioner in the Execution Proceedings and in the Original Suit are different and distinct, is erroneous and unsustainable in view of the decree schedule and C1 commission report. In Ext. C1 report it is specifically stated that the Judgment Debtor has purposefully planted trees adjacent to the pathway in a way causing obstruction to the egress and ingress through the pathway to the decree holder''s property. So also, he has dug pits on the northern and southern terminals of the pathway. Though in Ext. C1 commission report, the Commissioner has specifically mentioned each and every tree which is causing obstruction to the pathway, the court below has lost sight of those statements and doubted the lie of the pathway without any factual basis.

Per contra, the learned counsel for the respondent advanced arguments to justify the finding that C schedule pathway and pathway noted by the commission in C1 report are different and distinct. The learned counsel drew my attention to the lie of the pathway and pointed out that according to C schedule, the pathway starts from North goes towards East and takes a deviation towards East. But, as per Ext. C1 Commission Report, the pathway starts from North goes towards South and takes a deviation towards West. The learned counsel further admitted that the starting point and terminal point in both reports are one and the same; but lie of the pathway are different. Therefore, no reliance can be placed in Ext. C1 report for finding violation of decree against the Judgment Debtor.

In view of the rival contentions advanced at the Bar, the question that arises for consideration is, whether there is any illegality or incorrectness in the impugned order dismissing the Execution Petition on a finding that the pathway mentioned in Ext. C1 report is a different one other than C schedule pathway?

On a proper analysis of the above question, C schedule pathway mentioned in the decree and in Ext. C1 commission report deserves consideration. The C schedule pathway stated in the decree reads as follows:-

"...... The pathway, 200 links in length, and 15 links in width, proceeding from the pathway portion of 1.5 cents purchased by the plaintiff''s father Vidhyadharan, proceeding towards South, takes deviation towards East up to the western portion of defendant''s building, then proceeding southwards up to the boundary of A and B schedule properties."

In Ext. C1 commission report, the pathway is seen described as given below:-

"The pathway lies North-South direction and when reaches 35 metres towards South takes a deviation towards West reaches the south eastern corner of the defendant''s property and then proceeds southwards and reaches the plaintiff''s gate."

On a combined reading of the description of the pathway scheduled in the decree and reported in Ext. C1 commission report, apparently, it could be seen that even though the starting point and terminal point are one and the same, the deviation at the middle portion noted in decree schedule and Ext. C1 commission report is different. According to the decree schedule, the pathway after the plaintiff''s father''s property proceeds towards South and takes a deviation towards East up to the western portion of the defendant''s residential building and then proceeds southwards up to the plaintiff''s property. But, according to the pathway reported in Ext. C1 commission report, the pathway after the plaintiff''s father''s property takes a deviation towards West and then reaches the South-Eastern corner of the defendant''s residential property and then proceeds towards southwards. Thus, there is a marked difference at two points. Where the pathway in the decree schedule takes a deviation towards East, the pathway reported in Ext. C1 takes a deviation towards West. Similarly, according to the decree schedule, after the above deviation, the pathway reaches up to the western side of the defendant''s residential house; whereas Ext. C1 report states that the pathway after deviation towards West reaches at the South-western corner of the defendant''s residential plot. Surprisingly, even though there is marked difference in the middle portion in both reports, none of the parties have taken steps to clarify the difference by examining the Commissioner. Thus, the difference as regards the lie of the pathway requires clarification, by examining the Commissioner.

But at the same time, this Court is constrained to consider certain contentions which are obviously seen in the objection filed by the Judgment Debtor and maintained throughout his oral evidence. In the objection, the Judgment Debtor has specifically contended that C schedule pathway has never come into existence and the decree holder has never used the plaint C schedule pathway for the access to his property. It is also contended that C schedule pathway is an imaginary one.

I am of the opinion that the said contention is legally unsustainable, in an execution petition filed under Order XXI Rule 32 of the CPC. Going by the decree schedule, it could be seen that a well identifiable pathway was in existence and the Judgment Debtor is bound by the decree. Put it differently, he is legally liable to obey the decree unless and until the decree is set aside by the Appellate Court. It follows that, unless and until the decree is set aside, the Judgment Debtor cannot be heard to say that the C schedule pathway is an imaginary one and it has never come into existence. But, the respondent/Judgment Debtor has maintained the above contention throughout his cross-examination and this indicates his reluctance to obey the decree. But, that alone is not sufficient to find wilful violation of the decree. The wilful failure to obey the decree must be established by the act done by him in the pathway so as to cause obstruction to egress and ingress to decree holder''s residential property through C schedule pathway. No doubt, there are obstructions in the pathway noted in C1 report. But, it must be made sure that C schedule pathway and the pathway identified and noted by the Commissioner in C1 report are one and the same. Unless and until getting a clarification as to identity and the lie of the pathway noted by the Commissioner in C1 report, the respondent cannot be held liable for the wilful failure to obey the decree.

In this analysis, the impugned order under challenge is set aside and the matter is remitted back to the trial court for fresh consideration. The parties are allowed to adduce further evidence, particularly, as regards the identity of the C schedule pathway, at present. If the Court finds that Ext. C1 commission report is not acceptable, the Execution Court is at liberty to appoint another Commissioner, preferably the Commissioner who prepared the commission report in the original suit. The court below shall pass order afresh within a period of four months from today after affording sufficient opportunities to both parties. The parties shall appear before the court below on 01-10-2014.