IN THE HIGH COURT OF BOMBAY
Writ Petition No. 1210 of 2018
Decided On: 17.04.2018
A.S. Chandurkar, J.
Citation: 2018(5) MHLJ 727
1. Heard finally with consent of learned counsel for the parties.
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 :
“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.”
2. 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 decree-holder 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 decree-holder. The judgment-debtor raised an objection to the aforesaid proceedings and by the impugned order dated 28/08/2017 those objections came to be turned down. The judgment-debtor was directed to demolish the existing structure and take away any valuable material thereon. It was further directed that if the judgment-debtor did not desire to take away that material, further orders would be passed. Being aggrieved the judgment-debtor has challenged the aforesaid order.
3. Shri M.A. Randive, learned counsel for the judgment-debtor 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 simpliciter. In the execution proceedings it was not open for the decree-holder 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 judgment-debtor to demolish the existing structure.
4. Shri P.A. Markandeywar, learned counsel for the decree-holder 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 judgment-debtor. Despite service of this notice, the judgment-debtor did not raise any objection to the reliefs sought in the execution proceedings. By failing to raise any objection in that regard, the judgment-debtor 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. v. M/s. Posh Builders, Bombay and anr. MANU/MH/0401/1996 : 1996(2) Mh.L.J. 858 and judgment of the Honourable Supreme Court in Barkat Ali and anr. v. Badrinarain (Dead) by LRrs. MANU/SC/0783/2008 : (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 judgment-debtor 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 v. B.G. Rajalingam MANU/SC/0212/1996 : AIR 1996 SC 780, Mohd. Ismail v. Ashiq Husain MANU/UP/0092/1970 : AIR 1970 Allahabad 648, Kannu Gounder v. Natesa Gounder MANU/TN/0399/2004 : AIR 2005 Madras 31 and Iqbal Hussain S/o. Ali Hussain (died) Thr. L.Rs. Syed Ahmed Hussain S/o. Ali Hasan and anr. v. Municipal Council, Purna MANU/MH/2751/2015 : 2015(6) Mh.L.J. 833. It was thus submitted that the executing Court acted within its jurisdiction in directing the judgment-debtor to remove the existing structure.
5. 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 decree-holder.
6. 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 judgment-debtor can show cause as to why the decree in question should not be executed. In other words it is open for the judgment-debtor 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 judgment-debtor 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 judgment-debtor 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 judgment-debtor 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 judgment-debtor even at the subsequent stage of the execution proceedings. This position of law has been affirmed in Barkat Ali and anr. (supra). It is thus clear that failure to raise any objection to the executability of the decree thereafter precludes the judgment-debtor from raising such objection.
7. Under provisions of Order XXI Rule 35(3) of the Code it is open for the judgment-debtor to remove or take away or do any other act so as to put the decree-holder 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 judgment-debtor to remove the structure standing on the portion of the land of which possession is to be delivered to the decree-holder would naturally be an incidental direction. The decisions relied upon by the learned counsel for the decree-holder 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.
8. It is thus clear that the executing Court acted within its jurisdiction in granting time of fifteen days to the judgment-debtor 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. Rule is accordingly discharged with no order as to costs.
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.