Sundaramma vs Jayaram and Others

Aravind Kumar, J.—Heard Sri. K. Shashikiran Shetty, learned Senior counsel appearing on behalf of M/s. Shetty & Hegde Assts. for petitioner and Sri. C. Pattabiraman, learned counsel appearing for Caveators/respondent Nos. 1, 3, 6 & 23. By consent of learned Advocates appearing for parties this Writ Petition is taken up for final disposal.

Petitioner is the decree holder and in order to enjoy the fruits of decree obtained by her in R.A. No. 9/2002 dated 29.06.2005 confirmed in RSA No. 2015/2005 dated 16.03.2007 initiated execution proceedings in Ex. No. 38/2005 and sought for delivery of possession of Schedule "C" property. The decree passed by First Appellate Court reads as under:

"Appeal is allowed. The judgment and decree passed in OS. 796/92 Dt. 30.11.2001 is hereby set aside. It is hereby declared that the plaintiff is the absolute owner of the plaint ''A schedule properties. Plaintiff is entitled to the relief of Permanent Injunction, in respect of the "B" & "D" Schedule properties against the defendants. Plaintiff_is also entitled for mandatory injunction in terms of the prayer sought in paragraph No. 15(c) of the plaint. In the facts and circumstances of the case, parties to bear their own costs."

(Emphasis Supplied)

Paragraph 15(c) of the prayer sought for in the suit reads as under:

"15(c). For Mandatory Injunction directing the defendants to demolish the properties described in the C schedule unlawfully put up by the respective defendants 1,2,4,5,9,18 & 21, and if these defendants failed to remove and demolish the construction the plaintiff prays that a commissioner may be appointed by the court for demolition of the properties described in the C schedule at the cost of the respective defendants.

In order to enforce the decree of mandatory injunction, execution petition as referred to herein above i.e., Execution Petition No. 38/2005 came to be filed by decree holder apart from seeking for other reliefs. During the pendency of execution proceedings an application came to be filed by the decree holder under Section 151 CPC and same came to be allowed on 16.03.2015. Order passed by trial Court on the said application has been produced along with writ petition at Annexure-K. Same would indicate that decree holder had filed said application to reissue Commissioner warrant with police help to enable her to measure the encroached properties and to take further course of action to execute the Commissioner''s warrant. This application came to be resisted by the judgment debtors 1, 3, 4(a) & 4(c), 18 and 21 i.e., respondents 1, 3, 4, 6, 23 and 26 and same was adjudicated by the executing Court and was allowed by order dated 16.03.2015. Operative portion of said order reads as under:

"Application filed by the Dhr U/S 151 of CPC to issue commissioner warrant with the police help is allowed.

Reissue Commissioner Warrant to demarcate the ''C'' schedule property and fix the boundary from which point to which point the ''C'' schedule property has to be demolished except IJKL as mentioned in the sketch and take the photos and video at the time of filing the point and demarcation at the cost of the Dhr and produce the same before the Court."

When this exercise was under process by the Court Commissioner memo of instructions came to be filed by the judgment debtors 1,3,4(a) & 4(c), 18 and 12 i.e., respondents 1, 3, 4, 6, 23 & 26 vide Annexure-B whereunder above said judgment debtors wanted the Court Commissioner to carry out certain works. They sought for following instruction being carried out by the Court Commissioner:

"1. The Court Commissioner appointed by this Honourable Court shall issue prior notice to these Judgment debtors and their counsel intimating about the date and time of proposed execution of Commission Warrant well-in-advance to enable their presence.

The Court Commissioner to obtain the necessary Revenue records from Tahsildhar/Surveyor Offices at Bangarpet in respect of Sy. No. 63 of Dasarahosahalli Village Robertsonpet Hobli, Bangarpet Taluk and execute the commissioner warrant with the aid of Tippini copy, Survey sketch, phodi documents etc.

The Court Commissioner to obtain the documents from present case records from this Honourable Court and execute Commission Warrant with the help of the said documents.

The Court Commissioner to obtain to measure and mark Survey No. 63 of Dasarahosahalli, Robertsonpet Hobli, Bangarpet Taluk along with measurements and boundaries. The Court Commissioner to note the boundaries of Survey No. 63 especially northern boundary for the purpose of identifying the ''C'' schedule property.

The Court Commissioner to measure and identify Schedule ''A'' of the execution petition schedule and mark the same with boundaries.

The Court Commissioner to identify ''C'' schedule properties and note down their boundaries.

The Court Commissioner to identify and measure and mark the lands of Sri. Seetharamaiah Setty and Sri. Muneer Shmed (wrongly typed as Umar Ahmed in Execution petition schedule) shown as northern boundary in '' A'' schedule of execution petition.

The Court Commissioner to note the present status of land of Seetrharamaih Setty and Sri Muneer Ahmed in execution petition schedule).

The Court Commissioner to draw sketch of Survey No. 63 and note in it the observations made by him on the spot while executing the Commission Warrant.

The Commissioner to carry out all and every instructions of these Judgment Debtors and their counsel may render on the spot."

This memo of instructions filed by judgment debtors came to be opposed by decree holders by filing statement of objections vide Annexure-L contending inter alia that it is beyond the scope of execution proceedings and measurement of properties if undertaken would amount to traveling beyond the decree and Commissioner who had already been appointed, has given the report that judgment debtors are not cooperating and application for police help having been filed and allowed, only act which was required to be undertaken by the Court Commissioner is to demolish the existing structures in Schedule ''C'' property as per the decree. Hence, they sought for rejection of said memo filed by the judgment debtors.

Executing Court after considering rival contentions though rejected the memo filed by judgment debtors, it has issued further directions in addition to directions already issued on 16.03.2015 and it reads as under:

"(a) Firstly shall demarcate and identify the ''A'' schedule property within given boundaries as shown in the decree schedule.

(b) secondly the court commissioner as to ascertain whether ''C'' schedule property exist within ''A'' schedule property and if so same has to be demarcated and it shall be clearly shown where exactly ''C'' schedule property exist in ''A'' schedule property.

(c) Thirdly, the houses in ''C'' schedule property has to be identified."

It is this direction which has been issued by the executing Court, which has been impugned in the present writ petition contending inter alia that it is beyond the scope of the decree and it travels beyond the decree.

Per contra, Sri. C. Pattabiraman, learned counsel appearing for contesting judgment debtor namely judgment debtor who had filed the memo before executing Court, would not only support the directions issued by executing Court but would also contend that Schedule ''C'' property is part of Schedule ''A'' property and identification and demarcation of Schedule ''A'' property is very much necessary so as to identify the schedule ''C'' property and without such exercise being undertaken by the Court Commissioner, demolishing the buildings in Schedule ''C'' property cannot take place. As such, he supports the impugned order.

Having heard the learned Advocates appearing for parties and on perusal of case papers it would clearly emerge that undisputedly judgment debtors have suffered a decree in R.A. No. 9/2002 vide judgment and decree dated 29.06.2005, which has since been affirmed by this Court in RSA No. 2015/2005 on 16.03.2007 vide Annexure-G. As already noticed hereinabove the decree that has been passed by the appellate Court insofar as it relates schedule ''C'' property is concerned is clear and specific and there is no ambiguity in that regard. It has been specifically decreed by the First Appellate Court that plaintiff is entitled for a mandatory injunction in terms of prayer sought for in paragraph 15(c) of the plaint. At the cost of repetition it requires to be observed that in paragraph 15(c) of plaint, plaintiffs had sought for a mandatory injunction namely to demolish the structures existing in Schedule ''C'' property. The description of ''C'' schedule properties had been denoted in the rough sketch which had also been appended to plaint and it is part and parcel of the decree. It would clearly indicate and demarcates the properties in occupation by different judgment debtors. As such, the only exercise which is required to be undertaken by the Court Commissioner is to execute the decree in accordance with decree passed by First Appellate Court in R.A. No. 9/2002 and any exercise undertaken by executing Court to demarcate schedule ''C'' property from out of schedule ''A'' property would amount to going beyond the decree that has been passed.

Be that as it may. Executing Court had already issued a direction on 16.03.2015 based on an application filed by the decree holder and directions which have been given by the executing Court on 16.03.2015 has reached finality, inasmuch as, decree holder has accepted the said order. Thus, executing Court will have to proceed with the execution proceedings after receiving the report of Court Commissioner and it is needless to state that Court Commissioner would execute the decree as passed in R.A. No. 9/2002 and also by complying with the directions issued by executing Court on 16.03.2015. Executing Court can regulate its proceedings after receipt of report from the Court Commissioner. In that view of the matter, direction given by the executing Court in the impugned order, Annexure-A, dated 05.09.2015, cannot be sustained. Hence, I proceed to pass the following:

"(i) Writ petition is hereby allowed.

(ii) The direction issued by the Principal Civil Judge & Addl. JMFC, dated 05.09.2015 in Execution Petition No. 38/2005 vide Annexure-A stand quashed.

(iii) Executing Court to proceed with the proceedings keeping in mind observations made hereinabove."

Ordered accordingly.