1. The present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the applicant herein – original plaintiff to quash and set aside the impugned order dated 16/08/2011 passed by learned Executing Court below Exh.1 in Regular Execution Application No.8 of 2008, by which, learned Executing Court has dismissed the said Execution Application preferred by the applicant herein – original plaintiff.
2. The applicant herein – original plaintiff has submitted Execution Application No.8 of 2008 in the Court of learned Principal Civil Judge, Manavadar for executing judgement and decree passed in Regular Civil Suit No.71 of 1975 and making grievance that the defendants have acted contrary to the judgement and decree passed in Regular Civil Suit No.71 of 1975 by constructing a wall on the northern side of the land bearing Survey No.135/1, Part-2 and by which natural flow of the water from the petitioner's land is affected and/or stopped. It appears that learned Executing Court has considered consent judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975 as well as considered the map prepared by Court Commissioner and came to the conclusion that construction of the wall on the northern side of the land bearing Survey No.135/1 Part-2 by the respondents is not contrary to judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975 and, therefore, learned Executing Court dismissed the said Execution Application.
Being aggrieved by and dissatisfied with the impugned judgement and order dated 16/08/2011 passed by the learned Executing Court below Exh.1 in Execution Application No.8 of 2008 in dismissing the same, the applicant herein – original plaintiff has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3. Mr.Vimal Patel, learned advocate appearing on behalf of applicant herein – original plaintiff has vehemently submitted that as such the learned Executing Court has not properly appreciated and considered the judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975 in toto. It is submitted that the judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975 was not only with respect to construction of the wall but also with respect to natural flow of water from the petitioner's land through the land bearing survey No.135/1 belonging to the original defendants. It is submitted that though the construction of the wall on southern portion of the land bearing Survey No.135/1, Part-2 may not be contrary to the judgement and decree passed in Regular Civil Suit No.71 of 1975, however, by construction of such a wall the natural flow of water from the petitioner's land is affected/stopped, the same is in contravention of judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975. It is submitted that learned Executing Court has not considered the same at all and has considered the judgement and decree passed by learned Trial Court in Regular Civil Suit No.71 of 1975 with respect to construction of wall only. Therefore, it is requested to quash and set aside the impugned order passed by learned Executing Court and remand the matter to the learned Executing Court to consider Execution Application No.8 of 2008 afresh by considering the entire judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975 as a whole i.e. inclusive of the consent decree passed by learned Trial Court with respect to natural flow of water from the petitioner's land through land bearing survey No.135/1.
4. Mr.P.P.Kasvala, learned advocate appearing on behalf of the contesting respondents has submitted that as such learned Executing Court has rightly interpreted and considered the judgement and decree passed by learned Trial Court in Regular Civil Suit No.71 of 1975 and considering the report prepared by the Court Commissioner, learned Executing Court has rightly come to the conclusion that construction of wall on the northern side of the land bearing survey No.135/1, Part-2 is not in contravention of the judgement and decree passed by the learned Trial Court. However, he is not in a position to show anything from the order passed by learned Executing Court that learned Executing Court has considered another part of judgement and decree passed in Regular Civil Suit No.71 of 1975 i.e. with respect to the right of the petitioner herein with respect to natural flow of water from his land through land of the defendants.
Under the circumstances, to the aforesaid extent the matter is required to be remanded to the learned Executing Court to consider the aforesaid aspect in accordance with law and after considering the judgement and decree passed by learned Civil Court in Regular Civil Suit No.71 of 1975. Considering the aforesaid facts and circumstances of the case and without expressing anything on merits, learned Executing Court to decide as to whether by putting up construction on the northern portion of the land bearing Survey No.135/1, Part-2 by the respondents, any breach has been committed pursuant to the judgement and decree passed in Regular Civil Suit No.71 of 1975 and/or whether right of the petitioner of natural flow of the water from his land to the land of the respondents has been affected or not.
5. For the reasons stated hereinabove, the impugned order dated 16/08/2011 passed by learned Executing Court below Exh.1 in Execution Application No.8 of 2008 is hereby quashed and set aside and the matter is remanded to the learned Executing Court for deciding the said Execution Application afresh in accordance with law and on merits and in light of the judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975 with respect to natural flow of water from the petitioner's land through land of the respondents (as per judgement and decree passed in Regular Civil Suit No.71 of 1975) and learned Executing Court is hereby directed to consider as to whether by putting up construction of wall on the northern portion of the land bearing Survey No.135/1, Part-2, whether right of the petitioner of natural flow of water from his land through the land of the respondents has been affected or not and for that, learned Executing Court is required to consider the judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975 as a whole and pass an appropriate order in accordance with law and on merits. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order.
It is again made clear that this Court has not expressed anything in favour of either of the parties and learned Executing Court to consider the same in accordance with law and on merits and in light of the judgement and decree passed by the learned Trial Court in Regular Civil Suit No.71 of 1975. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
[M.R.SHAH,J] *dipti