The Petitioner / Plaintiff / Decree Holder has filed the Civil Revision Petition as against the order dated 31.01.2008 in E.A.No.4459 of 2007 in E.P.No.1047 of 2006 in O.S.No.8417 of 1994 passed by the Learned IXth Assistant City Judge, City Civil Court, Chennai.
2. The Executing Court while passing orders in E.A.No.4459 of 2007 on 31.01.2008 in E.P.No.4459 of 2007 in O.S.No.8417 of 1994 has interalia opined that '... it is also argued that when the decree is silent about superstructure under caption of five persons without ordering demolition of superstructure by the order of the decree it is found as argued by the petitioner that the decree at present as available is found to be one which is not executable. Hence, this petition under Section 47 of Civil Procedure Code is entertained at this stage by holding a view that the decree is not executable without the order for removal of superstructure indeed. Hence, this petition stands allowed as prayed for with a finding that the decree is not executable at present without the proper relief in the decree as the property is with pacca superstructure' and resultantly allowed the application without costs.
3. The Learned Counsel for the Petitioner / Plaintiff / Decree Holder urges before this Court that the impugned order dated 31.01.2008 passed by the Executing Court in E.A.No.4459 of 2007 in E.P.No.1047 of 2006 in O.S.No.8417 of 1994 is against law, without jurisdiction and moreover the Executing Court has over looked the decisions referred to on the side of Revision Petitioner / Decree Holder which points out that even in the absence of decree for removal of superstructure, an Executing Court has got wide power to issue directions for removal of superstructure so as to enable the Revision Petitioner to obtain possession of the vacant land and indeed the Executing Court as erred in coming to the conclusion that the Petitioner / Decree Holder cannot execute the decree at present in the absence of removal of superstructure and that apart the Executing Court ought to have directed the Judgment Debtor to remove the superstructure was put up by him as to effectuate vacant delivery of the suit site to the Decree Holder and also that the Executing Court is empowered to determine all questions relating to right, title or interest in the property in execution proceedings, but these aspects of the matter have not been adverted to by the Executing Court in a proper prospective and therefore prays for allowing the Civil Revision Petition in the interest of justice.
4. The Learned Counsel for the Revision Petitioner / Decree Holder cites the decision B.Gangadhar v. B.G.Rajalingam 1996 TNLJ at page 24 at special page 27 wherein the Hon'ble Supreme Court has observed that ' Order 21 Rule 35 (3) of Civil Procedure Code 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 delivery possession of the property in execution of decree etc'.
5. He also relies on the decision in Duraisami Mudaliar v. Ramasami Chettiar and another 1979 TNLJ at page 9 at special page 11 wherein it is held as follows ... " In such a case, in the execution of the decree for possession, the Executing Court can order the removal of demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in A.I.R.1934 Lah.97 and A.I.R.1970 All. 648".
6. Also on the side of the Revision Petitioner, the attention of this Court is invited to the decision ''Arthur Theodore James (deceased) and two others v. Mrs.Hanna Rosaline and 4 others 1999-1-L.W at page 222 wherein it is held thus, '' Merely because decree does not provide for removal of super-structure, power of Executing Court cannot be belittled and decree will not become inexecutable''.
7. Per contra, the Learned Counsel for the Respondent / 2nd Defendant / Judgment Debtor contends that an Executing Court has come to the correct conclusion that without an order for removal of superstructure, the decree obtained in O.S.No.8417 of 1994 is an unexecutable one and has allowed the E.A.No.4459 of 2007 and since it is a valid and a fair order, the same need not be interfered with by this Court sitting in revision.
11. Before the Executing Court, the Respondent / 2nd Defendant has filed an affidavit in E.A.No.4459 of 2007 in E.P.No.1047 of 2006 in O.S.No.8417 of 1994 wherein it is among other thing averred that 'while disposing of Second Appeal in S.A.No.1295 of 2006, this Court has been pleased to observe that it is not in controversy that the landed property belonged to the Temple and it was also not in dispute that the superstructure has been raised by the Tenants etc., and that the execution petition has been filed for recovery of possession without a specific decree for removal of superstructure and unless the decree is amended the execution petition is not maintainable inasmuch as the decree is an unexecutable one as void and ineffective' and has therefore prayed for an issuance of an order to close the Execution Petition.
12. In the counter filed by the Revision Petitioner / Decree Holder it is stated that against the Respondent's / Deceased Mother Angammal the Revision Petitioner / Temple has filed O.S.No.6411 of 1976 seeking the relief of declaration and possession and in the suit, the respondent's mother filed an application under Section 9 of the Tamil Nadu City Tenants Protection Act, 1922 and that the said application has been dismissed and the suit has been decreed etc., and the respondent's mother during her life time has committed default in payment of arrears of rent and as such the revision petitioner has filed a suit in O.S.No.8417 of 1994 for ejectment and by that time Act 2 of 1996 has come into force etc., and in fact the first appeal and second appeal filed by the respondent have been dismissed and when delivery of possession has been ordered in the Execution Petition and when the warrant has been taken, the respondent's subtenants have made objection and hence E.A.No.3160 of 2007 has been filed for removal of obstruction and the same is pending and the right to the superstructure has been extinguished with the closure of the suit i.e. O.S.No.6411 of 1996 and the present application is only to protract.
13. At this stage, this Court pertinently extracts the decree dated 31.10.2005 passed in O.S.No.8417 of 1994 which enjoins as follows:-
1)that the 2nd defendant be and is hereby directed to deliver vacant possession of the suit premises to the plaintiff on or before 31.01.2006.
2)that the 2nd defendant do pay plaintiff a sum of Rs.35/- (Rupees Thirty Five only) per month as future damages from the date of plaint i.e. 28.10.1994 till the date of delivery of vacant possession, that such ascertained amount shall be payable on payment of requisite Court Fee paid by the Plaintiff.
3)that the 2nd defendant do also pay plaintiff a sum of Rs.638.50 (Rupees Six Hundred and Thirty eight and paise fifty only) towards the costs of the suit as taxed etc.,
14. It is to be borne in mind that Section 47 of Civil Procedure Code presupposes the existence of a decree which is capable of execution. It does not apply to cases where the decree sought to be executed is either a nullity or declaratory in character. The issue whether a certain decree is executable clearly comes within the ambit of Section 47 of Civil Procedure Code. It is an issue pertaining to Execution, Discharge or Satisfaction of the decree. The aspect of inexecutability of the decree is included within 'Execution, Discharge or Satisfaction of the decree'. As far as the present case is concerned the decree in O.S.No.8417 of 1994 dated 31.10.2005 does not refer to the superstructure which is, under occupation of the five individuals. However, the decree directs the Respondents / 2nd Defendant to deliver vacant possession of the suit premises to the plaintiff on or before 31.01.2006 etc., Admittedly, the Revision Petitioner / Plaintiff has not filed any application before the Executing Court with a prayer for removal of superstructure so as to effectuate vacant delivery of the suit premises. The Executing Court can order removal of demolition of superstructure in a given set of facts and circumstances of the case. Indeed, the power to remove the superstructure on the land is an incidental and ancillary to the power of delivery of possession of the property. Therefore, in the light of peculiar facts and circumstances of the case namely viz. that one party is the owner of the land and another party being owner of the superstructure, this Court directs the Revision Petitioner / Plaintiff to file an application in the execution proceedings praying for appointment of an Advocate Commissioner to delivery the suit property in the manner known to law and in the event of such application being filed by the petitioner, the Executing Court shall provide opportunity to the Respondents / 2nd Defendant to file counter / objections and the Executing Court after providing opportunities to both parties and also by taking into account of the relevant pleadings, Commissioner's Report etc., shall pass appropriate orders. In the application as well as in the main execution proceedings so as to give a complete quietus to all the controversies / disputes involved between the parties in a complete and comprehensive manner because of the axiomatic well settled principle of law that an Executing Court has the inherent power to remove any obstruction or superstructure which is consequential to the delivery of possession of property in execution of decree and in that view of the matter, allows the Civil Revision Petition by setting aside the orders passed in E.A.No.4459 of 2007 dated 31.01.2008 in the interest of justice.
15. In the result, the Civil Revision Petition is allowed leaving the parties to bear their own costs. The order passed by the Executing Court in E.A.No.4459 of 2007 dated 31.01.2008 is set aside. The revision petitioner / plaintiff is directed to file necessary application before the Executing Court praying for an appointment of an Advocate Commissioner to deliver the vacant possession of the premises without any further delay and upon such application being filed the Respondent / 2nd Defendant is directed to file his counter and the Executing Court upon consideration of the respective pleadings in the application for an appointment of an Advocate Commissioner shall pass appropriate orders thereto, after taking into account of the objections filed by the parties if any, in the manner known to law and further is also directed to pass appropriate orders in E.A.No.4459 of 2007 after restoring the same to file and also to pass final appropriate orders in E.P.No.1047 of 2006 within a period of two months from the date of receipt of a copy of this order and to report compliance to this Court, without fail.
ssp To The IXth Assistant Judge, City Civil Court, Chennai