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Judgment
Rule.
Heard finally with consent of learned counsel for the parties. Â
The petitioner is the defendant in the suit filed by the respondent plaintiff for a declaration that the defendant had no right to discharge rain water on
the land of the plaintiff along with a prayer for possession of area admeasuring 6.75 sq. mt.   In that suit there was also a prayer for grant of
mandatory injunction to remove the construction erected by the defendant on the plaintiff's land. Said suit was decreed on 29/08/2009 by passing the
following decree :Â
 “ 1] The Suit is partly decreed with costs.
2] Defendant shall hand over the possession admeasuring 6.75 sq.mtr. of C.T.S. No.308, situated at Bela which bounded as East: CTS No.307, West :
Part of CTS No.308, North: Road on which encroachment of defendant and South: Part of CTS No.308 to the plaintiff.
3] Decree be drawn up accordingly.â€
This decree attained finality with the dismissal of the appeal filed by the defendant.  Said decree was thereafter sought to be executed.  In
the execution proceedings the decreeÂholder sought possession of 6.75 sq. mt land. It was also prayed that the defendant's construction be
demolished and thereafter possession be handed over to the decreeÂholder. The judgmentdebtor raised an objection to the aforesaid proceedings
and by the impugned order dated 28/08/2017 those objections came to be turned down. The judgmentÂdebtor was directed to demolish the existing
structure and take away any valuable material thereon. It was further directed that if the judgmentÂdebtor did not desire to take away that
material, further orders would be passed. Being aggrieved the judgmentÂdebtor has challenged the aforesaid order.   Â
Shri M. A. Randive, learned counsel for the judgmentÂdebtor submitted that in the suit the plaintiff had specifically prayed for a decree for
mandatory injunction so as to direct the defendant to remove the construction standing on the suit property. This relief was not granted either by the
trial Court or by the appellate Court. The decree was for possession simplicitor.   In the execution proceedings it was not open for the
decreeholder to make a prayer for removal of that construction as it would amount to seeking relief which was not granted in the suit.   It was
therefore submitted that the executing Court committed a jurisdictional error in directing the judgmentÂdebtor to demolish the existing structure. Â
Shri P. A. Markandeywar, learned counsel for the decreeÂholder supported the impugned order. By referring to the provisions of Order XXI
Rule 23(1) of the Code of Civil Procedure, 1908 (for short, the Code) he submitted that after the decree was passed by the trial Court in the year
2009, that decree was sought to be executed and notice under provisions of Order XXI Rule 22(1) of the Code was issued to the judgmentÂdebtor.
Despite service of this notice, the judgmentÂdebtor did not raise any objection to the reliefs sought in the execution proceedings. By failing to raise
any objection in that regard, the judgmentÂdebtor was now precluded from raising such objection as the same were barred by the principles of
constructive res judicata. In that regard learned counsel relied upon the judgment of the Division Bench in Laxman Bala Surve and ors. vs. M/s
Posh Builders, Bombay and anr. 1996(2) Mh.L.J. 858 and judgment of the Honourable Supreme Court in Barkat Ali and anr. vs. Badrinarain
(Dead) by LRrs. (2008) 4 SCC 615.  He then referred to the provisions of Section 52 of the Transfer of Property Act, 1882 and submitted that as
the judgmentdebtor had raised construction wrongfully and he was required to hand over possession of the land on which construction had been
made, the direction for removing the construction as an incidental order could always be issued. For said purpose he referred to the provisions of
Order XXII Rule 35(3) of the Code. He also placed reliance on the decisions in B. Gangadhar vs. B. G. Rajalingam AIR 1996 SC 780, Mohd.
Ismail vs. Ashiq Husain AIR 1970 Allahabad 648, Kannu Gounder vs. Natesa Gounder AIR 2005 Madras 31 and Iqbal Hussain s/o Ali Hussain (died)
Thr. L.Rs. Syed Ahmed Hussain s/o Ali Hasan and anr. vs. Municipal Council, Purna 2015(6) Mh.L.J. 833. It was thus submitted that the
executing Court acted within its jurisdiction in directing the judgmentÂdebtor to remove the existing structure.Â
After hearing the learned counsel for the parties and after giving due consideration to their respective submissions, I find merit in the contentions
as raised by the respondent. It is not in dispute that the plaintiff in the suit had prayed for relief of mandatory injunction for directing the defendant
to remove the construction made on the suit property. A prayer for delivery of possession was also made.   The trial Court however partly
decreed the suit and granted the relief of possession.   It is not in dispute that the construction in question stands on the portion of the land of
which possession has been directed to be handed over to the decreeÂholder. Â
As per provisions of Order XXI Rule 23(1) of the Code, on receiving notice issued under provisions of Order XXI Rule 22 (1) of the Code the
judgmentÂdebtor can show cause as to why the decree in question should not be executed. In other words it is open for the judgmentÂdebtor to
appear pursuant to the show cause notice and contest the executability of the decree.   It is undisputed that such notice was issued to the
judgmentÂdebtor and that no objection was raised to the executability of the decree. On account of failure to raise such objection it was not
permissible for the judgmentÂdebtor to raise such objection at a later stage.   The Division Bench in Laxman Bala Surve and ors. (supra) has
held in clear terms that if despite notice issued under provisions of Order XXI Rule 22 of the Code the judgmentÂdebtor fails to appear and show
cause against the execution, the Court is bound under Rule 23(1) to order execution.   That order would operate as constructive res judicata
against the judgmentÂdebtor even at the subsequent stage of the execution proceedings.  This position of law has been affirmed in Barkat Ali and
anr. (surpa). It is thus clear that failure to raise any objection to the executability of the decree thereafter precludes the judgmentÂdebtor from
raising such objection. Â
Under provisions of Order XXI Rule 35(3) of the Code it is open for the judgmentÂdebtor to remove or take away or do any other act so as to put
the decreeÂholder in possession. The decree in question is one for possession.  It is well settled that while executing a decree for possession
the executing Court is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession.   A
direction to judgmentÂdebtor to remove the structure standing on the portion of the land of which possession is to be delivered to the decreeÂholder
would naturally be an incidental direction.   The decisions relied upon by the learned counsel for the decreeÂholder support his contention in that
regard. Moreover, provisions of Section 52 of the Transfer of Property Act, 1882 also permit such course to be followed. Â
It is thus clear that the executing Court acted within its jurisdiction in granting time of fifteen days to the judgmentÂdebtor to demolish the existing
structure and to take away any valuable material. In absence of any jurisdictional error, there is no case made out to interfere in writ jurisdiction.Â
Rule is accordingly discharged with no order as to costs.  Â
 The time granted by the executing Court as per the impugned order dated 28/08/2017 is extended by period of four weeks from today.Â