Sunday 15 May 2016

When court can pass order for demolition of construction in execution of decree for possession?

The Apex Court in a case of B.Gangadhar, Petitioner
Vs.   B.G.Rajalingam,   Respondent  (supra),   in   paragraph
Nos.6 and 7 of the judgment, made following observations :­
“6.  Rule 35(3) of Order 21 itself manifests that when
a decree for possession of immovable property was
granted and delivery of possession was directed to be
done,   the   Court   executing   the   decree   is   entitled   to
pass such incidental, ancillary or necessary orders for
effective   enforcement   of   the   decree   for   possession.
That power also includes the power to remove any
obstruction   or   super­structure   made   pendente   lite.
The exercise of incidental, ancillary or inherent power
is consequential to deliver possession of the property
in execution of the decree.  No doubt, the decree does
not contain a mandatory injunction for demolition. But
when the decree for possession had become final and
the judgment debtor or a person interested or claiming
right through the judgment­ debtor has taken law in
his hands and made any construction of the property

pending suit, the decree­ holder is not bound by any
such construction. The relief of mandatory injunction,
therefore,   is   consequential   to   or   necessary   for
effectuation of the decree for possession.   It is not
necessary   to   file   a   separate   suit   when   the
construction   was   made   pending   suit   without
permission   of   the   court.     Otherwise,   the   decree
becomes in­executable driving the plaintiff again for
another round of litigation which the Code expressly
prohibits such multiplicity of proceedings.
7. It is also not necessary that the tenant should be
made party to  the  suit  when  the  construction was
made pending suit and the tenants were inducted into
possession without leave of the Court. It is settled law
that a tenant who claims title, right or interest in the
property  through  the  judgment  debtor or under the
colour  of  interest  through   him,   he  is   bound   by  the
decree   and   that,   therefore,the   tenant   need   not
econominee be impleaded as a party defendant to the
suit nor it be an impediment to remove obstruction put
up by them to deliver possession to the decree.  What
is relevant is only a warning by the bailiff to deliver
peaceful possession and if they cause obstruction, the
bailiff is entitled to remove the obstruction; cause the
construction   demolished   and   deliver   vacant
possession to the decree holder in terms of the decree.
Thus considered, we hold that the High Court and the
executing Court have not committed any error of law
in directing demolition of shops and delivery of the
possession to the decree­holder.”

22. The   High   Court   of   Andhra   Pradesh   in   the   case   of
Dongala  Venkaiah   and   another   Vs.  Dongala  Raji  Reddy
(supra) relying upon the Judgment of the Supreme Court in
the case of  B.Gangadhar,  Petitioner   Vs.   B.G.Rajalingam,
Respondent,   reported   in   AIR  1996  Supreme  Court  780
has made similar observations.
23. It is thus clear that the Court executing the decree is
entitled to pass such incidental, ancillary, necessary orders
for effective enforcement of the decree for possession.  This
power also includes the power to remove any obstruction, or
super­structure made pendente lite.  In the case in hand, the
decree   of   possession   had   become   final.     It   was   for   the
Respondent­Municipal Council, Purna not to allow any such
illegal constructions raised  pendente lite  by the side of the
road.  Thus, the petitioner/decree holder is not bound by any
such   illegal   constructions.     It   is   not   necessary   for   the
petitioner   to   file   a   separate   suit,   otherwise,   the   decree
becomes in­executable driving him again for another round
of   litigation   which   the   Code   expressly   prohibits   such
multiplicity of litigation.
24. In the given set of facts, it would be rather wise to say
that the approach of the Executing Court to some extent

disallowing   the   amendment,   which   is   in   the   nature   of
traveling beyond the decree, may be correct, but, certainly
the executing court ought to have taken care to execute the
decree   by   directing   the   removal   of   the   said   illegal
constructions by exercising the powers of Order XXI Rule 35
(3) of Code of Civil Procedure.
25. In light of the above discussion and observations made
by the Apex Court in case of  B.Gangadhar, Petitioner  Vs.
B.G.   Rajalingam,   Respondent,   reported   in   AIR   1996
Supreme   Court   780  (supra), Writ Petition is disposed of
with directions to the Executing Court to execute the decree
by  removing  the   illegal   construction   carried   out   over   the
additional area of 12R as shown in the map Exh.123, and
shall   order   delivery   of   vacant   possession   of   the   property
under execution to the petitioner within a period of three (03)
months from the date of this order. 
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2073 OF 2013
Iqbal Hussain s/o Ali Hussain,

VERSUS
Municipal Council, Purna,

CORAM : V. K. JADHAV, J.

DATE OF PRONOUNCING THE JUDGMENT :07.10.2015.
Citation;2016(2) ALLMR152

2. The   petitioner/original   decree   holder   has   filed   an
application at Exh.125 before the Executing court seeking
amendment in Regular Darkhast No.02/2004.  The learned
Civil Judge, Jr. Division, Purna, by its impugned order dated
31.07.2012 rejected the said application.   Hence, this writ
petition.
3. Brief facts giving rise to the present writ petition, are
as under :­
The   petitioners   are   the   legal   representatives   of   the
original plaintiff in Regular Civil Suit No.12/1997 (old R.C.S.
No.234/1989). The said suit was instituted for recovery of
possession and decree of perpetual injunction against the
respondent/original defendant Municipal Council, Purna in
respect of the suit property.  
4. The   trial   court,   by   its   judgment   and   order   dated
15.1.2003, partly decreed the suit and thereby directed the
Respondent/original defendant to hand over the possession
of   the   land   ad­measuring   63R   out   of   the   land   S.No.16
situated   at   Purna,   Tq.   Purna,   District   Parbhani   to   the
plaintiff   and   further   restrained   the   defendant­Municipal
Council, Purna, from using the road passing through said
portion of the land ad­measuring 63R in any manner.  Said

decree has attained finality.   Consequently, the petitioner
filed Regular Darkhast No.2/2004 before the learned Civil
Judge Jr. Division, Purna.
5. During the course of the execution of the decree, the
executing court was pleased to issue possession warrant.
Some strangers had approached this Court by filing the Writ
petition No.6258/2006 praying therein to stay the execution
of the decree on the ground that they are the persons likely
to be adversely affected by the execution of the decree.  They
were claiming to be in possession over some portion of the
property through Municipal Council.   However, this Court
rejected   the   said   writ   petition   with   observations   that
strangers to the decree are entitled to file the appropriate
application before the executing Court under the provisions
of the Code of Civil Procedure.  Thus, said strangers to the
decree filed an application before the Executing Court about
their possession over some portion of the property under
execution   i.e.   precisely   on   the   side   portion   of   the   road
constructed by the Municipal Council.  The learned Judge of
the executing court, after considering their objections and
reply filed by the decree holder, rejected said applications.

6. Thereafter, executing court was pleased to issue the
warrant for delivery of possession in favour of the plaintiff as
per the decree.  Furthermore, necessary directions were also
issued to the Taluka Inspector of Land Records, Purna to
mark the property for execution and carry out the necessary
measurement   for   that   purpose.     Accordingly,   the   Taluka
Inspector of Land Records has carried out the measurement
on   25.6.2008   and   noted   that   the   suit   road   has   been
expanded from both sides after previous measurement of the
year   1986   relied   upon   in   the   suit   and   there   is   some
encroachment in the periphery of the suit property.   The
Taluka Inspector of Land Records submitted its report dated
15.7.2008   to   the   Executing   Court.     The   petitioner   has,
therefore, moved an application before the executing court to
carry   re­measurement   of   the   suit   property   alongwith
additional encroachment, if any, found on the spot.   Said
application was allowed and re­measurement was carried out
on 5.6.2009 through the Taluka Inspector of Land Records,
Purna.  Accordingly, re­measurement was carried out.
7. In the re­measurement, it was found that actual land
to   the   extent   of   75R   out   of   S.No.16   owned   by   the
petitioner/decree holder is covered by the encroached area
including the suit land ad­measuring 63 R.   The Taluka

Inspector   of   Land   Records   has   drawn   a   map   showing
additional   encroachment,   which   is   placed   at   Exh.123
alongwith   panchnama   at   Exh.124   on   the   record   of   the
executing Court.
8. In   pursuance   of   the   aforesaid   contents   of   the
panchnama and map drawn by the Taluka Inspector of Land
Records, Purna, the petitioner filed an application to issue
possession   warrant   to   the   extent   of   75R,   however,   the
executing Court by order dated 23.9.2011 on the application
at   Exh.114   directed   the   petitioner   to  examine   the   Taluka
Inspector of Land Records, Purna to prove the contents of
the map.  It has also observed in the order that, prayer made
in the application Exh.114 for issuing possession warrant as
per   the   said   map   would   be   considered   after   leading   the
necessary evidence.
9. The   petitioner,   in   pursuance   of   the   aforesaid   order,
examined the Taluka Inspector of Land Records, Purna at
Exh.122.     Said   witness   has   testified   the   details   of   the
measurement   carried   out   by   him   and   accordingly,   the
contents of the map proved.  Same is marked at Exh.124.  

10. Accordingly,   the   petitioner,   in   view   of   the   aforesaid
evidence and in pursuance of the earlier order passed by the
executing   court   on   the   application   Exh.114,   moved   an
application   at   Exh.125   dated   24.1.2012   praying   thereby
permission to carry out the amendment in the execution
petition, incorporating the amendment in the claim clause as
well as the prayer clause in terms of the measurement map
Exh.123.   However, said application came to be rejected by
the impugned order dated 31.7.2012 with the observation
that the petitioner cannot travel beyond the decree.  Hence,
this writ petition.
11. The learned counsel for the petitioner submits that as
per the order of the executing court, re­measurement was
carried out through the Taluka Inspector of Land Records,
Purna, and map alongwith panchnama was placed before the
executing court.  It is, therefore, necessary to incorporate the
changes recorded during the actual execution of the decree
in   the   execution   petition.     The   learned   counsel   further
submits that, merits of the proposed amendment cannot be
gone into while considering the application for amendment.
The learned counsel further submits that, the learned judge
of   the   executing   court   has   not   considered   this   material
aspect   and   rejected   the   prayer   of   amendment   in   the

execution   petition.     The   learned   counsel   further   submits
that, the petitioner is about 77 years of age and is fighting
for   execution   of   the   decree   passed   in   the   year   2003.
Rejection   of   the   application   for   amendment   has   virtually
stalled the executing proceedings itself.
12. The learned counsel for the petitioner, in the alternate,
submits that, the Court executing the decree is entitled to
pass   such   incidental,   ancillary   or   necessary   orders   for
effective enforcement of the decree for possession in view of
the provisions of Order XXI, Rule 35(3) of the Code of Civil
Procedure.  These powers also includes the power to remove
any obstruction or super­structure made pendente lite.  The
learned counsel further submits that though decree does not
contain mandatory injunction for demolition, but when the
decree had attained the finality, the decree holder is not
bound by any such construction, and it is not necessary to
file a separate suit when the construction by way of illegal
encroachment was made pending the suit/decree without
permission of the court.
13. The learned counsel for the petitioner, in support of his
submissions placed reliance on following judgments:­

I] B.Gangadhar,   Petitioner   Vs.  
B.G.Rajalingam, Respondent, reported in 
AIR 1996 Supreme Court 780.
II] Dongala   Venkaiah   and   another   Vs.  
Dongala   Raji   Reddy,   reported   in   AIR  
2007 Andhra Pradesh 344.
14. The learned counsel for respondent submits that in
the execution proceedings the executing Court has no right
to travel beyond the decree.   The learned counsel further
submits that the learned Judge of the executing court has
therefore rightly rejected the application for amendment in
the execution petition Exh.125, the Writ Petition is, therefore,
devoid of any merits and thus liable to be rejected.
15. On careful perusal of  the  map Exh.123,  it   appears
that, Purna­Nanded road is situated east­west in direction
and the suit land S.No.16 is situated towards the southern
side   of   the   road   Purna­Nanded.     It   appears   from   the
judgment   and   decree   passed   in   the   suit   that   the
measurement was carried out in respect of the suit land on
6.2.1986   and   7.2.1986   and   it   was   revealed   in   the   said
measurement that land ad­measuring 63R out of S.No.16
has been encroached by Purna­Nanded road.   Accordingly,
the learned judge of the trial court in the suit has concluded
that   the   defendant   Municipal   Council,   Purna   has   made

encroachment upon 63R land out of S.No.16 and accordingly
recorded findings to issues No.1 and 2 in the affirmative.
Consequently,   in   the   operative   order   of   the   suit,   the
defendant Municipal Council, Purna is directed to hand over
the possession of the land ad­measuring 63R out of the land
S.No.16 as shown in the said map and further the Municipal
Council, Purna is also restrained from using the said road
passing through the said portion of land ad­measuring 63R
in any manner.  
16. It further appears that, as per the re­measurement
map Exh.123 carried out by the Taluka Inspector of Land
Records, Purna as per the directions given by the executing
court and as per the testimony of the Taluka Inspector of
Land Record (Exh.122), towards the southern side of road,
the   encroachment   to   the   extent   of   12R   by   making
constructions   like   hotel   etc.,   found   in   existence.     It   also
appears that the Taluka Inspector of Land Record, Purna has
also   carried   out   panchnama   to   that   effect   and   said
panchnama is also marked at Exh.124 before the executing
court.     It   is   needless   to   repeat   here   that,   the   said
encroachment   over   the   additional   area   of   12R   is   raised
pendente lite.  The same obviously prevents the passage or
right to access to the property under execution.

17. It further appears that, those encroachers rather to
say persons raised the construction over the said portion of
additional   area   of   12R   by   illegal   means   approached   this
Court   by   filing   the   writ   petition   No.6258/2006   and   this
Court had rejected their writ petition with observation that
they are entitled to file an appropriate application before the
Executing   Court   under   the   provisions   of   Code   of   Civil
Procedure.     So   far   as   said   obstruction   caused   by   those
strangers are concerned, they had approached the executing
court by filing their objection petition under Order XXI Rule
97(1) of the Code of Civil Procedure.  The learned Judge of
the executing Court, after considering their objections and
reply   filed   by   the   decree   holder,   rejected   the   said
applications.  
18. It   is   well   settled   that,   no   action   will   lie   on   an
executable judgment, for the execution is only remedy on
such a judgment.   Main principle underlying Section 47 is
that, matter relating to execution, discharge or satisfaction of
the   decree   and   arising   between   the   parties   or   their
representatives   should   be   determined   in   the   execution
proceedings and not by separate suit.  Section 47 of the Civil
Procedure Code reads as under :­

“S.47. Questions to be determined by the Court
executing decree.­ 
(1) All questions arising between the parties to the
suit   in   which   the   decree   was   passed,   or   their
representatives,   and   relating   to   the   execution,
discharge   or   satisfaction   of   the   decree   shall   be
determined by the Court executing the decree and not
by a separate suit.
(2) [omitted by Act 104 of 1976]
(3) Where a question arises as to whether any person
is   or   is   not   the   representative   of   a   party,   such
question shall, for the purposes of this section, be
determined by the Court.
[Explanation I.­ For the purposes of this section, a
plaintiff   whose   suit   has   been   dismissed   and   a
defendant against whom a suit has been dismissed
are parties to the suit.
Explanation II.­ (a) For the purposes of this section, a
purchaser   of   property   at   a   sale   in   execution   of   a
decree shall be deemed to be a party to the suit in
which the decree is passed; and
(b) All questions relating to the delivery of possession
of   such   property   to   such   purchaser   or   his
representative   shall   be   deemed   to   be   questions
relating to the execution, discharge or satisfaction of
the decree within the meaning of this section.]”

19. It appears that the question to be determined by the
Court executing the decree is very wide and comprehensive/
exclusive jurisdiction has been conferred upon the executing
court   in   respect   of   all   matters   relating   to   the   execution,
discharge   or   satisfaction   of   the   decree,   irrespective   of
whether such question arises before or after the decree has
executed.  It provides an inexpensive and expeditious remedy
to the parties before the Court to obtain adjudication of all
questions relating to the execution of the decree. 
20. It is thus, utmost necessary to refer the provisions of
Order XXI Rule 35 which reads as under :­
35. Decree for immovable property.­
(1) Where a decree is for the delivery of any immovable
property, possession thereof shall be delivered to the
party to whom it has been adjudged, or to such person
as he may appoint to receive delivery on his behalf,
and, if necessary, by removing any person bound by
the decree who refuses to vacate the property.
(2)   Where   a   decree   is   for   the   joint   possession   of
immovable   property,   such   possession   shall   be
delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming by
beat   of   drum,   or   other   customary   mode,   at   some
convenient place, the substance of the decree. 

(3) Where possession of any building or enclosure is to
be   delivered   and   the   person   in   possession,   being
bound by the decree, does not afford free access, the
court, through its officers, may, after giving reasonable
warning and facility to any woman not appearing in
public   according   to   the   customs   of   the   country   to
withdraw, remove or open any lock or bolt or break
open   any   door   or   do   any   other   act   necessary   for
putting the decree holder in possession. 
21. The Apex Court in a case of B.Gangadhar, Petitioner
Vs.   B.G.Rajalingam,   Respondent  (supra),   in   paragraph
Nos.6 and 7 of the judgment, made following observations :­
“6.  Rule 35(3) of Order 21 itself manifests that when
a decree for possession of immovable property was
granted and delivery of possession was directed to be
done,   the   Court   executing   the   decree   is   entitled   to
pass such incidental, ancillary or necessary orders for
effective   enforcement   of   the   decree   for   possession.
That power also includes the power to remove any
obstruction   or   super­structure   made   pendente   lite.
The exercise of incidental, ancillary or inherent power
is consequential to deliver possession of the property
in execution of the decree.  No doubt, the decree does
not contain a mandatory injunction for demolition. But
when the decree for possession had become final and
the judgment debtor or a person interested or claiming
right through the judgment­debtor has taken law in
his hands and made any construction of the property

pending suit, the decree­holder is not bound by any
such construction. The relief of mandatory injunction,
therefore,   is   consequential   to   or   necessary   for
effectuation of the decree for possession.   It is not
necessary   to   file   a   separate   suit   when   the
construction   was   made   pending   suit   without
permission   of   the   court.     Otherwise,   the   decree
becomes in­executable driving the plaintiff again for
another round of litigation which the Code expressly
prohibits such multiplicity of proceedings.
7. It is also not necessary that the tenant should be
made party to  the  suit  when  the  construction was
made pending suit and the tenants were inducted into
possession without leave of the Court. It is settled law
that a tenant who claims title, right or interest in the
property  through  the  judgment  debtor or under the
colour  of  interest  through   him,   he  is   bound   by  the
decree   and   that,   therefore,the   tenant   need   not
econominee be impleaded as a party defendant to the
suit nor it be an impediment to remove obstruction put
up by them to deliver possession to the decree.  What
is relevant is only a warning by the bailiff to deliver
peaceful possession and if they cause obstruction, the
bailiff is entitled to remove the obstruction; cause the
construction   demolished   and   deliver   vacant
possession to the decree holder in terms of the decree.
Thus considered, we hold that the High Court and the
executing Court have not committed any error of law
in directing demolition of shops and delivery of the
possession to the decree­holder.”

22. The   High   Court   of   Andhra   Pradesh   in   the   case   of
Dongala  Venkaiah   and   another   Vs.  Dongala  Raji  Reddy
(supra) relying upon the Judgment of the Supreme Court in
the case of  B.Gangadhar,  Petitioner   Vs.   B.G.Rajalingam,
Respondent,   reported   in   AIR  1996  Supreme  Court  780
has made similar observations.
23. It is thus clear that the Court executing the decree is
entitled to pass such incidental, ancillary, necessary orders
for effective enforcement of the decree for possession.  This
power also includes the power to remove any obstruction, or
super­structure made pendente lite.  In the case in hand, the
decree   of   possession   had   become   final.     It   was   for   the
Respondent­Municipal Council, Purna not to allow any such
illegal constructions raised  pendente lite  by the side of the
road.  Thus, the petitioner/decree holder is not bound by any
such   illegal   constructions.     It   is   not   necessary   for   the
petitioner   to   file   a   separate   suit,   otherwise,   the   decree
becomes in­executable driving him again for another round
of   litigation   which   the   Code   expressly   prohibits   such
multiplicity of litigation.
24. In the given set of facts, it would be rather wise to say
that the approach of the Executing Court to some extent

disallowing   the   amendment,   which   is   in   the   nature   of
traveling beyond the decree, may be correct, but, certainly
the executing court ought to have taken care to execute the
decree   by   directing   the   removal   of   the   said   illegal
constructions by exercising the powers of Order XXI Rule 35
(3) of Code of Civil Procedure.
25. In light of the above discussion and observations made
by the Apex Court in case of  B.Gangadhar, Petitioner  Vs.
B.G.   Rajalingam,   Respondent,   reported   in   AIR   1996
Supreme   Court   780  (supra), Writ Petition is disposed of
with directions to the Executing Court to execute the decree
by  removing  the   illegal   construction   carried   out   over   the
additional area of 12R as shown in the map Exh.123, and
shall   order   delivery   of   vacant   possession   of   the   property
under execution to the petitioner within a period of three (03)
months from the date of this order.    
26. Rule   is   made   absolute   in   above   terms.     In   the
circumstances, there shall be no order as to costs.
                 ( V.K. JADHAV, J. )


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