The petitioners/second respondents/decree holders have preferred this civil revision petition as against the order dated 18.06.2009 in E.A.No.7814 of 2008 in E.P.No.3353 of 1991 in O.S.No.522 of 1981 passed by the Learned IX Assistant Judge City Civil Court in allowing the application filed by the respondent/obstructor under Section 151 of Civil Procedure Code praying for issuance of a specific direction to the Bailiff at the time of executing the warrant that the Decree shall be executed only after precisely defining the boundaries of the property mentioned in the Decree and described in the application.
2. The Executing Court while passing orders in E.A.No.7814 of 2008 dated 18.06.2009 has among other things observed that 'as such the boundaries referred to in the Decree has to be defined specifically for enabling the bailiff to Execute the warrant and deliver within the four boundaries referred to in the Decree. As there will not be any prejudice or hardship to any of the parties, the petition prayed by the petitioner is for a relief of giving specific direction to the bailiff as sought for in the order and resultantly allowed the application without costs.
3. The learned counsel for the revision petitioners/decree holders submits that the Executing Court while allowing E.A.No.7814 of 2008 dated 18.06.2009 has exceeded the jurisdiction vested in it by issuing directions in allowing the application filed by the respondent/obstructor thereby redefining the boundaries of the property forming the subject matter of the Execution Petition and when there is no dispute in regard to the identification of the property then there is no need to allow the E.A.No.7814 of 2008 and it is the primordial duty of an Executing Court to execute the Decree as it is and in the absence of the Court the bailiff finding it difficult to execute the Decree passed by the trial Court as confirmed by the High Court and Hon'ble Supreme Court, it is not open to the Executing Court to suggest, in what manner the Decree is to be implemented by defining the boundary when there is no discrepancy in the boundaries and actual area and moreover, the dispute regarding the boundaries has been raised an application filed under Section 47 of the C.P.C. and the same has been dismissed and later affirmed by this Court in Civil Revision Petition No.499 of 2006. Added further, the Executing Court has not taken note of the fact that the respondent/obstructor has projected an application under Order XXI Rule 93 of Civil Procedure Code to declare her as an obstructor and the same has been dismissed and confirmed up to the Hon'ble Supreme Court and that apart, an application to appoint an Advocate Commissioner for identifying the property has been dismissed on the ground that the dispute regarding the boundaries has already been raised an application under Section 47 of Civil Procedure Code and the same cannot be agitated once again by the respondent and the respondent what she cannot achieve directly cannot be achieved by her indirectly after having failed in all earlier attempts and in short the direction given by the Executing Court in E.A.No.7814 of 2008 is an arbitrary exercise of judicial discretion which requires interference by this Court sitting in revision and therefore, prays for allowing the civil revision petition to prevent an aberration of justice.
4. Per contra, the learned counsel for the respondent/obstructor submits that the decree holder as per the decree is entitled to execute the decree and to take possession in respect of 4,800 sq.ft. of vacant land within the stated boundary and as a matter of fact the respondent has filed E.A.No.416 of 2005 before the Executing Court as an obstructor. But the said application has been dismissed and later the respondent filed A.S.No.300 of 2005 which has been dismissed by the Learned First Appellate Authority and as against the said judgment and decree the respondent prefers Second Appeal No.937 of 2008 before this Court and the same has been dismissed and indeed, the decree holder is bound to execute the decree in respect of the property only with the boundaries as stated above but an endeavor is made to execute the decree as against the property bearing Old No.59, Present No.77, L.B. Road, Thiruvanmiyur, Chennai 41, which is admittedly barred, because of the simple fact that it is not the property covered under the decree and really speaking the order of the Executing Court passed in E.A.No.7814 of 2008 will not cause any prejudice or hardship to any of the parties and therefore the impugned order passed by the Executing Court in E.A.No.7814 of 2008 dated 18.06.2009 need not be interfered by this Court at this stage, and therefore, prays for dismissal of the civil revision petition.
5. The learned counsel for the petitioners cites the decision of this Court Duraisami Mudaliar v. Ramasami Chettiar and another 1979 TLNJ 9 at page 10 wherein it is inter alia observed as follows;
"The salutary principle which has got to be kept in mind is that where a Court directs by a decree or order that vacant possession of land should be given, that decree can be made effective by directing its own officer or remove the superstructure on it, and to deliver vacant possession of the property to the decree holder. It may not be necessary to have any specific power in that behalf, and such a power is exercised in every case in which vacant possession is ordered. The power to remove the superstructure on the land is an incidental power; necessary and ancillary to the power to deliver possession of the property. If, however, should there be any obstruction within the meaning of Order 21 Rule 97 of the Code of Civil Procedure, that has got to be dealt with specifically under the said provisions. This has been recognised in AIR 1955 Mad. 774.
Of course, the learned Judge was concerned with a case, where the relationship of landlord and tenant prevailed and, the proceedings were one under Section 41 of the Presidency Small Cause Courts Act. There will not be any difficulty with reference to a case where the superstructure came to be put up by the defendant either during the pendency of the suit or after the decree. In such a case, in the execution of the decree for possession, the executing Court can order the removal or demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in AIR 1934 Lah. 97 and AIR 1970 All. 648.
Where however the superstructures were put up before the institution of the suit and were not ordered to be removed as a part of the mandate in the decree, the proper course in appropriate cases would be to direct the judgment debtor to remove the superstructure so put up by him so as to effectuate vacant delivery of the suit site to the decree holder. See AIR 1927 Rangoon82.
I am inclined to follow the ratio enunciated in AIR 1970 All. 648 and that presents a workable solution in a case like the present case. The first defendant is given four weeks time from today to remove the superstructure if he so desires. In case the first defendant does not remove the superstructure, the Executing Court will deliver to the decree holder as it stands at the time of the delivery, leaving the decree holder to decide as to how to deal with the superstructure."
6. He also relies on the decision of this Court in Kannu Gounder v. Natesa Gounder AIR 2005 Madras 31 wherein it is held that;
"the decree holder is entitled to get vacant possession, afte removal of any construction or structures put up during pendency of suit."
7. Continuing further the learned counsel for the revision petitioner cites the decision of Hon'ble Supreme Court B. Gangadhar v. B.G. Rajalingam AIR 1966 Supreme Court 780 at page 782 wherein it is held as follows;
"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 selttled 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's 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 possesion to the decree-holder."
8. The learned counsel for the respondent cites the decision Jonaram Das v. Mohammed Abdul Kadir and others AIR 2007 Gau 18 at page 19 and 20 it is held thus;
"In the instant case, the defendant decree-holder contested that suit by filing written statements without controverting the boundary given in the schedule of the plaint and accepted the same all through out and the objection was raised only after execution of the decree. The reports of the Nazir as well as the enquiry so conducted by the learned Executing Court disclose that the decree was executed in terms of the boundary described in the plaint. In fact, neither in the objection filed by the petitioner at the initial stage nor even at the later stage of the proceeding he has challenged that the boundary of the suit property described in the plaint is different from that of the boundary described in the schedule to the decree. The consequence of such silence of the judgment-debtor is that the property which is the subject-matter of the suit falls within the boundary as provided in the decree."
9. He also brings it to the notice of this Court the decision Abdul Waheed Sahib v. A.N. Naina Mohammed and others CDJ Law Journal 1981 MHC 294 at page 297 in paragraph 12 whereby and whereunder it is held as follows;
"As I have already referred to above, these are matters which are to be really gone into by the executing Court and not by this Court sitting in revision against the impugned order. The learned District Munsif has dismissed the applications filed by the petitioner in the erroneous impression that the contentions raised before him about the non-enforceability of the decree have already been considered and decided by the High Court in Second Appeal No.696 to 699 of 1974. The conclusion of the District Munsif is clearly wrong. The petitioner sought to file the notification made under Act X of 1969 as a piece of additional evidence in the second appeals, but the learned single Judge and rightly, if I may say so with respect, refused to receive the document as additional evidence because it is by now well-settled that Order 41, Rule 27, Code of Civil Procedure, will have no application to second appeals. Therefore, it is wrong for the District Munsif to have assumed that the point now raised by the petitioner has already been considered by the High Court in second appeals. Even otherwise, it can never be said that a Court, while passing a decree could have also made a pronouncement about the executability of the decree. The question of the enforceability of a decree would arise only at the stage of execution proceedings and not earlier and as such, even as a proposition it will be a fallacy to say that the Court can render a finding about the executability of the decree even at the time of the passing of the decree. The learned District Munsif has then referred to certain observations by the High Court, which really do not threw any light on the facts of the case. Even assuming that the observation of the learned single Judge, that in spite of section 16-A of the Act X of 1969, the civil Court's jurisdiction to render a finding about the status of the parties is not affected, will amount to an adjudication of the rights of the parties, the District Munsif has failed to see that those observations must be eschewed from consideration because no pronouncement on merits by a Court without jurisdiction over a matter can have any legal force, Vide Upendra Nath v. Lall.
The learned District Munsif was, therefore, not right in holding that all the points raised in the petition under Section 47, Civil Procedure Code, have already been considered and decided against the petitioners in the second appeals.
Mr. Sundaravaradan, appearing for the respondents, lastly stated that in any event the notification, now projected for consideration by the petitioner, was not a final notification under Act X of 1969 and as such the petitioner is not entitled to claim the status of a registered tenant on the basis of a provisional notification. This is also a matter which the executing Court has to consider while dealing with the applications on their merits."
10. The learned counsel for the respondent submits that the petitioners/decree holders are trying to execute the decree against property bearing Old No.59, Present No.77, L.B. Road, Thiruvanmiyur, Chennai 41, which is not the property covered under the decree and therefore, in the interest of justice the decree ought to be executed only after defining the four boundaries to the property and if the same is not done, the decree holder may attempt to forcibly take possession of the property belonging to the respondent/obstructor which is situated on the eastern side by demolishing the said property. The learned counsel for the respondent also submits that earlier on 30.10.2001 the plaintiff's agent has taken the Bailiff to the property and that has requested the Court to add the present door number and also to remove the obstructors etc., and has prayed for police help to execute the order.
11. It is useful to refer to the schedule of E.P.No.3353 of 1991 wherein it is mentioned as follows;
"Chengalpet Registration District, Saidapet Sub Registration District, No.140, Thiruvanmiyur Village, a vacant house site measuring 4800 sq.ft. (2 grounds) measuring East to West 40 feet, North to South 120 feet in Nanja Paimash No. 351/A-1 now correlated to S.No.126/1 in patta No.108 bounded on the Northe by road measuring 15 feet in breadth provided by the Vendor herein on the east by house and ground bearing Door No.59, Lattice Bridge Road, belonging to the Vendor herein, on the South and West by Vacant land belonging to Marutheeswarar Temple Devasthanam. With a right of way in the road with breadth of 15 running west to east from Lattice Bridge Road, over the Land of Marutheeswarar Temple Devasthanam to the Vendor's house and ground bearing Doeer No.59, Lattice Bridge Road along the northern boundary of the property. This property was originally comprised in Nanja Paimash No. 351/A1/Kani, 0.30 kn patta No.108 and in Nanja Paimash No.351/2A Kani 0.30 in Patta No.110 in Srothiram, Thiruvanmiyur Village. The market value of the schedule land conveyed hereunder as per executant's assessment is Rs.15,000/- at the rate of Rs.7,500/- per ground."
12. Before the Executing Court in the common counter filed by one R. Srinivasan (4th respondent therein) it is inter alia mentioned that the respondent/obstructor is bound by the judgment and decree passed in the matter which has been confirmed by the Hon'ble Supreme Court, and also that the question of boundaries and discrepancies have already been raised and an application filed under Section 47 of the Civil Procedure Code has been dismissed on merits and further that the Civil Revision petition No.3214 of 2001 has been dismissed by this Court at the time of admission itself and moreover, after an elaborate enquiry in the Execution Petition pertaining to the said discrepancy finally the Execution Petition has been allowed and delivery has been ordered and as against the said order of delivery in the main Execution Petition, the respondent/obstructor's mother has filed a Civil Revision Petition No.29 of 2002 and the same has been dismissed on merits and that the Execution Application is only a vexatious one which is liable to be dismissed in limini.
13. On a careful consideration of the respective contentions, and bearing in mind of the divergent stand taken by the parties this Court is of the considered view that an executing Court cannot go behind the tenor of the decree passed thereto which has become admittedly a final and conclusive one and as a matter of fact even before the receipt of the bailiff's latest report as on date the prayer of the respondent/obstructor in E.A.No.7814 of 2008 praying permission of the Executing Court to give a specific direction directing the bailiff at the time of executing of warrant that the decree has to be executed only after precisely defining the boundary of the property stated in the decree is a premature and an otiose one and such the E.A.No.7814 of 2008 filed by the respondent/obstructor is a misconceived one and therefore on the basis of Equity, Fair Play, Good Conscience and even as a matter of prudence this Court directs the Executing Court to proceed further in the Execution Petition No.3353 of 1991 and if the Executing Court at the time of executing the warrant receives a report from the bailiff requiring the boundary of the property mentioned in the decree to be defined by metes and bounds for facile and proper execution of the decree then after considering the bailiff's report in right earnest, it shall pass suitable and appropriate orders (if need be by hearing the respondent) as it deems fit and proper based on the facts and circumstances of the case in an integral fashion and with these observations the Civil Revision Petition is disposed of leaving the parties to bear their own costs. Consequently, M.P.No.1 of 2009 is closed.
prm To The IX Assistant Judge, City Civil Court, Chennai