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Judgment
A.P. Lavande, J.—Heard Mr. Coutinho, learned Counsel for the petitioners and Mr. Da Costa, learned Counsel for the respondent.
Rule. By consent heard forthwith.
By this petition, under Article 227 of the Constitution of India, the petitioners challenge order dated 30/7/2010 passed by the Civil Judge, Junior Division, Margao, in Regular Execution No. 34/09/D allowing the application for execution filed by the respondent/decree holder.
By the impugned order, the petitioners have been directed to remove and dismantle the structure erected in plot A-2 without leaving the required set back of 3 metres from the boundary of plot A-1 of the decree holder within 15 days from the date of the order.
The respondent filed Regular Civil Suit No. 143/08/D against the plaintiffs seeking reliefs of mandatory and permanent injunction. The plaintiffs did not file written statement. However, on 15/9/2008 consent terms were filed, which read as under:
I. The defendants shall not do any construction in the plot A-2 without leaving a setback of 3 metres from the boundary of the plaintiff''s plot A-1.
II. The defendants shall be free to carry on with the construction of the rest of their structure after leaving setback of 3 metres from the boundary of the plaintiffs plot A-1.
Thereafter, the plaintiff filed Execution application alleging that the defendant/judgment debtor had carried out illegal structure in plot No. A-2 without leaving setback of 3 metres from the boundary of the decree-holder''s plot A-1.
The petitioners filed reply and contended that the said structure was already existing at the time of filing the consent terms and disposal of the suit on the basis of the consent terms. The Executing court did not accept the defense of the judgment debtors and consequently allowed the execution application filed by the respondent/decree holder.
Mr. Coutinho, learned Counsel appearing for the petitioners submitted that the Executing Court could not have disposed of the application after hearing the parties but the Executing Court ought to have held an inquiry in terms of Section 47 of the Code of Civil Procedure, since there were serious disputes as to when the alleged construction was carried out by the defendants/judgment debtors.
Mr. Da Costa, learned Counsel appearing for the respondent submitted that the petitioners neither filed the written statement nor in the consent terms it was stated that the said structure was already existing at the time of filing the consent terms and therefore the only legitimate inference that can be drawn is that the structure was constructed after the disposal of the suit and therefore, the respondent is entitled to execute the consent decree.
Having heard the learned Counsel for the parties, I am of the considered opinion that the submission made by Mr. Coutinho deserves to be accepted, since there is serious dispute as to when the said structure has been constructed by the petitioners. The Executing Court ought to have held an inquiry in terms of Section 47 of the CPC . In the absence of any cogent material on record regarding the construction of the said structure after filing of the consent terms, the Executing Court could not have disposed of the execution application solely on the basis of the submissions made by both the parties. The Executing court ought to have held an inquiry in terms of Section 47 of CPC and thereafter passed appropriate order.
In view of the above, the impugned order dated 30/7/2010 passed in Regular Execution No. 34/09/D is quashed and set aside. The Executing Court to hold an inquiry in terms of Section 47 of CPC by giving opportunity to both sides to lead evidence. The Executing court shall hold the inquiry and pass appropriate order expeditiously and in any case within a period of six months from the receipt of this order.
Rule is made absolute in the aforesaid terms.