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PONNAPPAN versus GOPAL PILLAI

High Court of Madras

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Ponnappan v. Gopal Pillai - C.R.P.(NPD)(MD) No.912 of 2006 [2007] RD-TN 1559 (21 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 21/04/2007

Coram

The Hon'ble Mr.JUSTICE S.RAJESWARAN

C.R.P.(NPD)(MD) No.912 of 2006

C.R.P.(NPD)(MD) No.1058 of 2006

Ponnappan .. Petitioner in both C.R.Ps.

vs.

Gopal Pillai .. Respondent in both C.R.Ps.

Civil Revision petitions filed under Sec.115 of C.P.C., against the orders dated 26.7.2004 and 30.1.2004 and made in E.P.No.166/2002 in O.S.No.453/1994 and in E.A.No.660/2003 in E.P.No.166/2002 in O.S.No.453/1994 respectively, on the file of the Principal District Munsif, Tirunelveli. For Petitioner : Mr.S.Annamalai, for C.Ganesh Kumar

For Respondent : Mr.S.Palanivelayutham :COMMON ORDER



These Civil Revision petitions have been filed under Sec.115 of C.P.C., against the orders dated 26.7.2004 and 30.1.2004 and made in E.P.No.166/2002 in O.S.No.453/1994 and in E.A.No.660/2003 in E.P.No.166/2002 in O.S.No.453/1994 respectively, on the file of the Principal District Munsif, Tirunelveli.

2.The plaintiff in O.S.No.453/1994 is the revision petitioner in both the Civil Revision Petitions.

3.The plaintiff filed O.S.No.453/1994 against the defendants for declaration, prohibitory injunction and also for mandatory injunction. The trial court by judgment and decree dated 14.7.2000, (1) declared that the 2nd item of the suit schedule property i.e., wall and the annexed 'Varukal' belongs to the plaintiff; (2) granted a permanent injunction restraining the 1st defendant (the respondent in C.R.Ps.) from interfering with the 2nd item of the suit schedule property and (3) for a mandatory injunction directing the 1st defendant (the respondent in C.R.Ps.) to put up a 'Varukal' which was already there within two months, failing which the same could be done through court. Against the judgment and decree dated 14.7.2000, an appeal was filed in A.S.No.172/2000 and the same was dismissed on 29.6.2001. Thereafter, E.P.No.166/2002 was filed by the decree holder to execute the decree, i.e., to put up the 'varukal' which was not done by the 1st defendant (respondent herein) within two months as directed in the decree. The decree holder filed an application in E.A.No.660/2003 before the executing court, to pass an order directing the respondent herein to remove the construction made by him touching the petition schedule wall, failing which to carry out the same through the court. It is stated in the affidavit filed in support of E.A.No.660/2003 that pending suit, constructions were made touching the petition schedule wall and therefore the same is to be removed. The execution court by an order dated 30.1.2004 dismissed E.A.No.660/2003 on the ground that even though construction was put up pending suit, no relief was claimed by the decree holder in the main suit and in the absence of any decree granted for removing the construction put up during the pendency of the suit, construction could not be removed in the execution petition. Thereafter, E.P.No.166/2002 itself was taken up for disposal for directing the respondent to put up the 'varukal' (waste water channel) and the execution court by order dated 26.7.2004 dismissed the execution petition itself as the same is inexecutable. This decision of the execution court is based on the report of the 'Ameen' which reveals that there is a wall belonging to the respondent and without removing the said wall, waste water channel could not be formed. Therefore, after observing that E.A.No.660/2003 filed by the revision petitioner was already dismissed on 30.1.2004, which was filed for removing the very same wall, the execution court held that the decree is inexecutable. Aggrieved by the order dated 26.7.2004, C.R.P.No.912/2006 was filed by the revision petitioner on 18.11.2004. Thereafter C.R.P.No.1058/2006 was filed by the very same revision petitioner on 9.12.2004, challenging the order dated 30.1.2004 made in E.A.No.660/2003.

4.Heard the learned counsel for the petitioner and the learned counsel for the respondent. I have also gone through the documents filed and the judgments referred to by them in support of their submissions.

5.The learned counsel for the revision petitioner submitted that when the construction was made pendente lite, the executing court ought to have removed the same instead of dismissing the execution petition itself as inexecutable. He further contended that the execution court should not allow technicalities to come in the way of the decree holder from enjoying the fruits of the decree. The learned counsel has relied on the decision of this court reported in 2006(1) CTC 526 (Athisayaraj, D.V. v. Tirunelveli Diocese Trust Association) and 2007(1) CTC 217 (Madaswamy v. Govindaraj) in support of his submissions.

6.It is not in dispute that the revision petitioner has obtained an executable decree in O.S.No.453/1994. When E.A.No.660/2003 was filed by the revision petitioner to remove the construction made by the respondent herein, touching the petition schedule wall, the executing court has clearly rendered a finding that the wall was put up by the respondent herein when the suit was pending. If that being so, instead of standing on technicalities that there was no decree for removing the wall put up when the suit was pending, the execution court ought to have passed appropriate orders keeping in mind the primary object of ensuring the decree holder to enjoy the fruits of the decree. At least, when the main E.P., was E.P.,taken up for consideration, the execution court ought to have found the way to execute the decree, rather than claiming it as inexecutable.

7.In 2006(1)CTC 526 (cited supra), this court held that as far as possible, technicalities should not be allowed to come in the way of executing the decree and in fact, the courts, which are expected to do justice to the parties, must favour the possible execution, thereby allowing the decree holder to enjoy the fruits of the decree and not depriving the right on the basis of some technicalities. The relevant portion is as under: "29.In Sampath Kumar v. Ayyakannu and another, 2002(4) CTC 189, the Supreme Court has held, reiterating the view already taken by the Apex Court: "An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed."

Therefore, it is evident, unless for the reasons to be recorded by the court, that amendment shall take effect on the date of which the application, seeking amendment was filed, then on the basis of doctrine of relation back, it shall take effect from the date of institution of the suit. In this case, applying the above principle, since amendment is one of procedural in nature, it may be given effect to, from the date of institution of the execution petition, and it need not be restricted to the date of application in order to say, it will be barred by limitation, thereby defeating the right of the decree holder, who obtained decree for recovery of money. As far as possible, this kind of technicalities, should not be allowed to come in the way of realising the decree amount, and in fact, the courts, which are expected to do justice to the parties, must favour the possible execution, thereby allowing the decree holder, to enjoy the fruits of the decree, not depriving that right, only on the basis of some technicalities, as raised in this case."

8.In 2007(1) CTC 217 (cited supra), this court was confronted with the question whether the decree holder who has obtained the decree for possession could execute the decree by removing the superstructure. There, an objection was raised to the executability of the decree on the ground that there was no direction in the decree to deliver vacant possession after removal of the construction. This court after considering the relevant materials held that when the construction was made pendente lite, the execution court ought to have ordered removal of obstruction of the superstructure made pendente lite. The relevant para reads as under:

"17.When the construction was made pendente lite, the Executing court ought to have ordered removal of obstruction of the superstructure made pendente lite. It cannot be disputed that the Respondent was trying to prevent execution of the Decree in one way or other. In that view of the matter, the impugned order is to be set aside, directing the Executing Court to deliver possession of the suit lane after removal of the obstruction or demolition, as the case may be. As per the decision of the Supreme Court, in the case cited supra, what is relevant is only a warning by the Bailiff, to deliver peaceful possession and if the Respondent causes obstruction, the Bailiff is entitled to remove the obstruction, cause the construction demolished and deliver vacant possession to the Decree-Holder in terms of the Decree."

9.Relying on these two decisions, learned counsel for the revision petitioner submitted that the revision petitioner should be permitted to enjoy the fruits of the decree dated 14.7.2000 made in O.S.No.453/1994.

10.I find force in the submissions of the learned counsel for the petitioner.

11.Admittedly, a decree was granted in O.S.No.453/1994, directing the 1st defendant (respondent herein) to reconstruct the 'varukal' which was there already and as per the execution court's own finding in its order dated 30.1.2004 made in E.A.No.660/2003, the offending construction was put up by the respondent herein when the suit was pending and if that being so, instead of finding fault with the decree holder for not getting the appropriate direction from the trial court to remove the offending construction, the execution court ought to have passed orders to remove the offending construction so that the 'varukal' could be reconstructed as decreed in O.S.No.453/1994. Further, the executing court went on to dismiss the execution petition itself by holding that the decree is inexecutable. This, in my considered view, is not the right approach and the execution court should always strive hard to see that the decree is executed rather than dismissing the same on technicalities.

12.Hence I am setting aside the order of the execution court dated 30.1.2004 made in E.A.No.660/2003 and the order dated 26.7.2004 made in E.P.No.166/2002 and directing the execution court to restore E.P.No.166/2002 on its file and to pass appropriate orders to enable the petitioner, decree holder to execute the decree dated 14.7.2000 made in O.S.No.453/1994 by removing the offending construction.

13.In the result, both the Civil Revision Petitions are allowed. No costs. C.M.P.No.1/2006 is closed.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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