1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicants-original plaintiffs to quash and set aside the impugned order passed by the learned executing Court-learned Civil Judge (Junior Division), Malia Hatina below Exh. 1 in Regular Darkast No. 3/2002 dated 26/12/2003 by which the learned executing Court has dismissed the said Darkast application filed by the applicants-original plaintiffs.
2. The facts leading to the present Civil Revision Application in a nutshell are as under;
2.1. The applicants-original plaintiffs instituted Regular Civil Suit No. 106/1982 in the Court of learned Civil Judge (Junior Division), Malia Hatina for declaration that the applicants- original plaintiffs have a right of way from the suit land in question by way of easement and the original defendants have no right to restrain the applicants-original plaintiffs from using the suit land as a way. The applicants-original plaintiffs also prayed for permanent injunction restraining the original defendants from obstructing the applicants-original plaintiffs from using the suit land in question as a way. It was the case on behalf of the applicants-original plaintiffs that despite the fact that they were using the suit land in question as a way to go to their agricultural field, original defendants have obstructed them and, therefore, declaration and permanent injunction was sought for and by judgment and decree dated 16/08/1988 the learned Civil Judge (Junior Division), Malia Hatina decreed the suit in toto and granted declaration and permanent injunction as prayed for. It appears that in the Appeal the judgment and decree passed by the learned trial Court came to be confirmed by the learned appellate Court as well as this Court in Special Civil Application. The judgment and decree passed by the learned appellate Court granting declaration and permanent injunction came to be confirmed up to this Court and the same has attained the finality. Thereafter, the applicants-original plaintiffs submitted Regular Darkast No. 3/2002 to execute the judgment and decree passed by the learned trial Court which came to be confirmed by this Court and the learned executing Court appointed the Court Commissioner. It appears that the Court Commissioner submitted the report that there is obstruction in the suit property i.e in the way and, therefore, he submitted the report that the decree is not capable of being executed and the learned executing Court dismissed Regular Darkast No. 3/2002 on the ground that no decree has been passed by the learned trial Court, remaining the obstruction and, therefore, no relief can be granted to the applicants-original plaintiffs to remove the obstruction as the same would be beyond the decree and, therefore, by impugned order the learned executing Court dismissed Regular Darkast No. 3/2002. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned execution Court dismissing the Execution Petition the applicants-original plaintiffs have preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3. Shri Desai, learned advocate appearing on behalf of the applicants-original plaintiffs-original decree holders has vehemently submitted that the learned executing Court has materially erred in dismissing the Execution Petition on the ground that the decree is not capable of being executed as no decree has been passed to remove the obstruction. It is submitted that the decree passed by the learned trial Court confirmed by this Court was very clear i.e. granting declaration and permanent injunction by which not only declaration was granted in favour of the applicants-original plaintiffs that they have right to use the suit land in question as a way to their field but even granted permanent injunction restraining the original defendants from obstructing the applicants-original plaintiffs from using the suit land as a way to their field and, therefore, it is submitted that anything which would come in the way of the applicants-original plaintiffs for using the suit land as a way to their field it was the duty of the executing Court to remove such an obstruction. It is submitted that by not granting the relief as prayed for, decree, which has been passed in favour of the applicants-original plaintiffs, would become nugatory and/or infructuous. It is submitted that it is the duty of the executing Court to see that the decree is implemented and executed and, therefore, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Shri Mehul Shah, learned advocate appearing on behalf of the original defendants. It is submitted that admittedly at the time when the suit was filed there was already obstruction and, therefore, as such it was for the applicants-original plaintiffs to pray to remove the obstruction, which the applicants-original plaintiffs have failed to pray. It is submitted that the decree, which was granted by the learned trial Court, which was sought to be executed, was only declaration and permanent injunction and no other decree was passed to remove the obstruction and, therefore, the learned executing Court has rightly rejected the Execution Petition by observing that as per the report of the Court Commissioner there is obstruction and, therefore, the decree cannot be executed as the Executing Court cannot go beyond the decree and, therefore, no illegality has been committed by the learned executing Court in dismissing the Execution Petition. In support of his above submission, Shri Shah, learned advocate appearing on behalf of the original defendants-original judgment debtors has relied upon the decision of the Hon'ble Supreme Court in the case of Gurdev Singh Vs. Narain Singh reported in AIR 2008 SC 630 and it is requested to dismiss the present Civil Revision Application.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the learned trial Court decreed the suit filed by the applicants-original plaintiffs and granted declaration that the applicants-original plaintiffs have right of way from the suit land by easement. The learned trial Court also granted declaration that the original defendants have no right and/or authority to restrain the applicants-original plaintiffs from using the suit land as way to go their filed. Not only that even the learned trial Court also granted permanent injunction restraining the original defendants-respondents herein from obstructing the applicants-original plaintiffs from using the suit land in question as a way to go to their field. The said decree has been confirmed up to the High Court. The aforesaid decree was sought to be executed. At the time of execution of the decree, the Court Commissioner submitted the report that there is obstruction and, therefore, unless and until any order is there to remove the obstruction, decree cannot be executed and considering the same, the learned executing Court has dismissed the Execution Petition by observing that in the decree there is no relief granted directing the original defendants to remove the obstruction and, therefore, the executing Court cannot go beyond the decree. The learned executing Court ought to have appreciated that there was permanent injunction granted against the original defendants restraining them from obstructing the applicants-original plaintiffs from using the suit land in question as a road to go to their field and, therefore, whatsoever obstruction that will come in the way of the applicants-original plaintiffs in using the suit land as a right is required to be removed and, therefore, it was the duty of the executing Court to see to it that the decree for permanent injunction and the declaration, which was granted in favour of the applicants-original plaintiffs, is fully implemented and executed. Therefore, the learned executing Court has materially erred in dismissing the execution petition by observing that the learned executing Court cannot go beyond the decree while executing the decree. It was the duty of the learned executing Court to see that such an obstruction is removed. Under the circumstances, the learned executing Court has materially erred in dismissing the Execution Petition by not executing the decree by removing the obstruction and, therefore, the learned executing Court has not exercised the jurisdiction vested in it.
6. Now so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Gurdev Singh (Supra) is concerned, as such there cannot be any two views that the learned executing Court cannot go beyond the decree. However, on facts, the said decision would not be applicable to the facts of the present case. In the case before the Hon'ble Supreme Court only injunction which was granted was restraining the original defendants from putting up trees. Before the Hon'ble Supreme Court it was prayed before the learned executing Court to remove the existing trees and to that the executing Court rejected the prayer to remove the trees. In the present case, as stated hereinabove, not only declaration has been granted in favor of the applicants-original plaintiffs that the original defendants have no right to obstruct the applicants-original plaintiffs from using the suit land as a right but even permanent injunction has been granted restraining the original defendants from obstructing the applicants-original plaintiffs from using the suit land in question as a right to go to their field and, therefore, anything, which will come in the way of using the suit land by the applicants- original plaintiffs as a way, the same is required to be removed. Under the circumstances, the impugned order passed by the learned executing Court dismissing the Execution Petition cannot be sustained.
7. In view of the above, the present Civil Revision Application succeeds. The impugned order passed by the learned executing Court-learned Civil Judge (Junior Division), Malia Hatina below Exh. 1 in Regular Darkast No. 3/2002 dated 26/12/2003 is hereby quashed and set aside and the learned executing Court is hereby directed to see that the judgment and decree dated 16/08/1988 passed by the learned Civil Judge (Junior Division), Malia Hatina in Regular Civil Suit No. 106/1982, which has been confirmed up to the High Court, is fully executed and implemented by removing the obstruction, if any, by appointing the Court Commissioner for the same.
8. With this, the present Civil Revision Application is allowed. Rule is made absolute to the aforesaid extent. No cost.
(M.R. SHAH, J.) siji