Tralokhya Nath Mazumdar vs Sarat Kumar Singh

Sultan Ahmed, J.—This is an appeal against an order of the District Judge of Patna arresting the execution of a certain decree on the ground that it is incapable of execution.

The circumstances and facts of this appeal may be shortly stated.

The appellant and the respondent are neighbours. The house of the plaintiff-appellant is to the west of the house of the defendant. On the second story of the plaintiff''s house there are two windows which have been in existence from a long time.

Sometime in the year 1894 or 1895 the defendant wanted to construct a house on the east of the plaintiff''s house. The plaintiff''s allegation was that the nay in which the defendant was constructing his house would obstruct the passage of light and air into the house of the plaintiff through the two windows. So in 1895 the plaintiff instituted a suit, which was numbered Suit No. 122 of 1895, in the Court of the Munsif of Patna for a perpetual injunction restraining the defendant from building a wall so as to obstruct the passage of light and air into the plaintiff''s house through the windows, and he succeeded in obtaining a decree from the Munsif on the 2nd March 1896 perpetually restraining the defendant from building a wall which may in any way obstruct the passage of light and air into the house of the plaintiff.

An appeal was preferred to the learned Judge against that decree, and, while that appeal was pending, it appears that both parties settled their differences, and on the 26th August 1896 a decree was passed by the learned Judge.

In order to satisfactorily decide the point that has been raised before me it is necessary to quote the decree in extenso:

This appeal coming on for decision on this the 26th Jane 1896 before Mr. J. Knoxwight, District Judge of Patna, in the presence of Mr. Sutherland, Babu Purnendu Narayan Singh and Babu Prasana Kumar, Pleaders for the appellant, and of Babu Guru Prasad Sen and Gangadhar Das, Pleaders for the respondent, it is ordered that

(1) the defendant do construct his wall at a distance of not less than 2 feet and nine inches from that of the plaintiff. This distance to be measured from wall to wall;

(2) the defendant shall not raise his wall including parapet higher than that of the plaintiff;

(3) the defendant shall not build on the west side of the western wall any projecting cornice;

(4) the southern space between the plaintiff''s wall and the defendant''s wall be left open so as to admit a maximum of light and air.

To pay costs of this appeal amounting to Rs. ... as detailed below. To pay the costs of de novo suit.

Nothing happened from 1896 till 1918 but in 1918 the plaintiff, on the allegation that the decree of the Civil Court had been contravened, applied for execution of. that decree and the removal of a portion of the wall which obstructed the passage of light and air into the house of the plaintiff.

The judgment-debtor filed an objection and the learned Munsif on the 13th January 1919 disposed of the preliminary objection that the decree was incapable of execution. He held that the decree of the Appellate Court was in fact a decree for perpetual injunction, and, as such, was capable of execution. He then subsequently proceeded to dispose of the other points which arose on the objection.

An appeal was preferred to the learned Judge against both the order on the preliminary point as well as the final order of the Munsif, dated the 19th May 1919.

The learned Judge in appeal held that the decree was incapable of execution and so convinced was he of the correctness of his decision that he declined to consider the other points which arose out of the objection. He accordingly allowed the appeal and in effect arrested the farther execution of that decree.

This appeal has now been filed against the order of the learned District Judge. The only point which I have to consider is, whether the decree sought to be executed is capable of execution or not. There can be absolutely no doubt that the decree of the Appellate Court in the suit is the only decree which has to be executed, and the first Court''s decree has merged into the decree of the Appellate Court. I do not think that this proposition of law can ever be contested, nor indeed has it been contested by the learned Vakil appearing for the appellant, Bat he contends that the decree of the Appellate Court is substantially a decree for prepetual injunction, and if there be any doubt about it, the Court is perfectly entitled to go into the decree of the first Court as well as the pleadings in the suit in order to properly construe the appellate decree.

The learned Vakil appearing on behalf of the respondent, however, contends that the decree of the Appellate Court after the compromise was merely a declaratory decree, and as such not capable of execution as a decree for prepetual injunction,

It will be noticed that the decree of the Appellate Court itself does not in any part of it say that it is a declaratory decree. No declarations are made and the decree clearly says that it is ordered that the defendant do construct the wall at a distance of not less than 2 feet 9 inches from that of the plaintiff and that the defendant shall not raise his wall including the parapet higher than that of the plaintiff, and that the defendant shall not build on the west side of the western wall any projecting cornice and so on. In my opinion it is idle to contend that an order like that is not mandatory.

The decree does not pretend to declare any right or title of the parties; the decree orders the defendant to do or not to do something. Therefore, on the face of the decree itself, in my opinion, it is a decree for injunction. And I am confirmed in the view that I take of this matter by a reference to the decree of the first Court as well as the pleadings in the suit.

The learned Vakil appearing on behalf of the respondent, however, denies the right of the Court to go beyond the decree itself which is under execution. In my opinion the executing Court is perfectly justified in referring to the decree of the first Court as well as to the pleadings in order to construe the decree under execution. It is an elementary principle of law that the executing Court cannot vary or alter the decree, but it must be satisfied as to what, it is called upon to execute, and in order to find that out when the decree is not clear, the Court is perfectly justified in referring to the pleadings and the decree of the trial Court; and as was laid down in the case of Ahilyabai v. Kashinath 5 Bom L.R. 802, a decree must be construed in a fair and reasonable spirit so as to advance and not to impede its execution.

The learned Judge held that though the plaintiff had obtained a decree he had simply secured a bag of wind, inasmuch as that decree was incapable of execution.

The learned Vakil appearing on behalf of the respondent submitted that the proper course for the plaintiff to adopt under such circumstances would be for him to institute a suit for specific performance of contract, or apply for review of the decree in order to make that decree a decree for perpetual injunction. In my opinion the plaintiff can in execution of the Appellate Court''s decree get the relief that he seeks.

I now proceed to consider whether the proposition that I have laid down above, that the executing Court can in case of doubt refer to the decree of the first Court and the pleadings in order to construe the decree which it is called. upon to execute, is supported by authorities.

In the Full Bench case of Muhammad Sulaiman khan v. Muhammad Yar Khan 11 A. 267 : A.W.N. (1889) 55 : 13 Ind. Jur. 427 : 6 Ind. Dec. (N.s.) 598 Mr. Justice Mahmood observed that "according to the Privy Council ruling, as well as the Full Bench ruling of this Court, as explained by Oldfield, J., in the case of Gobardhan Das v. Gopal Ram 7 A. 366 : A.W.N. (1855) 57 : 4 Ind. Dec. 604 and as now understood by us, the decree of the first Court when affirmed by the Appellate Court''s decree may be referred to in executing the appellate decree." in the case of Lachmi Narain v. Jwala Nath 18 A. 344 : A.W.N. (1896) 87 : 8 Ind. Dec.936 the case reported as Muhammad Sulaiman Elian v. Muhammad Yar Khan 11 A. 267 : A.W.N. (1889) 55 : 13 Ind. Jur. 427 : 6 Ind. Dec. 598 was followed; and it was held that "Where a decree is in its terms ambiguous, it is competent to the Court executing it to refer to the pleadings in the suit in which such decree was passed to ascertain its precise meaning," All these causes as a matter of fact follow the principle. laid down by Lord James in Robinson v. Duleep Singh (1879) 11 Ch.D. 798 : 48 L.J.Ch. 758 : 39 L.T. 313 : 27 W.R. 21. Lord James laid down that "in order to determine what the decree really decides, it is essential to see what were the rights which were in dispute between the parties and which were alleged between them." The same view was taken in the oases of Amolah Ram v. Lachmi Narain 19 A. 174 : A.W.N. (1897) 8 : 9 Ind. Dec.(N.S) 115 and Srinath Dass v. Hari Pada Mitter 3 C.W.N. 637.

Analysing the principle laid down in these oases it comes to this that if the appellate decree under execution is clear, a reference to the decree of the trial Court or to the pleadings is not permissible. As I have already stated, in ray opinion, the decree of the Appellate Court is perfectly clear. It is not a declaratory decree, because it does not pretend to be so; it is a mandatory decree which gives orders to the defendant to do or to abstain from doing certain things. If, however, the Court thought that there was an ambiguity as to the nature of the appellate decree, a reference to the decree passed by the trial Court as well as to the pleadings in the case would be perfectly justified. A reference to the pleadings and the decree of the trial Court can lead one to the irresistible conclusion that the decree of the Appellate Court was a decree for perpetual injunction. This being my view on the preliminary point on which the learned Judge has disposed of the appeal, I decree this appeal and hold that the appellate decree in the suit is capable of execution, I, therefore, remit the case back to the learned Judge for a full consideration of all the points that arose on appeal before him.

The result is that this appeal is allowed and decreed with costs.