Whether declaratory decree can be executed at behest of defendents?

   Insofar as the declaratory relief is

concerned, the defendants cannot be held to be the "decree holders" as

defined in Section 2(3) of the Code of Civil Procedure, 1908 (in short,

"CPC"). In Section 2(3) of the CPC, the term "decree holder" has been

defined as "any person in whose favour a decree has been passed or an

order capable of execution has been made". Firstly, on a mere reading of

the decree, it is clear that the relief of declaration granted is for the

exclusive benefit of the plaintiffs and, in fact, it is against the defendants.

Logically, therefore, that part of the decree cannot be executed by the

defendants as it may be an execution proceedings against themselves.

Further reason to hold that a declaratory decree cannot be executed at the

instance of the defendants is that such a decree is incapable of execution.


Viewing from any angle, that part of the decree granting a declaratory relief

is inexecutable, not only at the instance of the defendants, but also by the

plaintiffs themselves.    The definition of the term "judgment debtor" in

Section 2(10) CPC is also relevant. "Judgment debtor" means any person

against whom a decree has been passed or an order capable of execution

has been made.       So far as the declaratory decree is concerned, It is

passed against the defendants, though it is incapable of execution. This is

yet another reason to find that the decree of declaration is incapable of

execution at the behest of the defendants.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                         PRESENT:

                           MR. JUSTICE A.HARIPRASAD

                      FRIDAY, THE 26TH DAY OF JUNE 2015/

                                                CRP.No. 321 of 2013 ()
                                                  
        SOMAVALLY
          Vs
        PRASANNA KUMAR
           Citation;AIR 2015 kerala 286

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Declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession.

In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this Court while dealing with the issue held: “……a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree.”

Doctrine embodied in the legal maxim, ‘Ubi jus ibi idem remedium’ (where there is a right, there is a remedy). This Court dealt with the aforesaid doctrine in Dhannalal v. Kalawatibai & Ors., AIR 2002 SC 2572 and held, that “if a man has a right, he must have the means to vindicate and maintain it, and also a remedy, if he is injured in the exercise and enjoyment of the said right, and that it is indeed, a vain thing to imagine a right without a remedy, for the want of a right and the want of a remedy, are reciprocal”. (See also: Smt. Ganga Bai v. Vijay Kumar & Ors., AIR 1974 SC 1126)

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