Mr. Uday Shrinivas Vaidya vs Mr. Anand Vishnu Gaude and 1 Other

Smt. R.S. Dalvi, J.—Rule. By consent heard forthwith. The petitioner is the decree holder. The petitioner obtained decree in his suit for injunction. The decree granted to the petitioner was for demolition of the suit structure as well as for injunction restraining the defendants from interfering with the plaintiff''s land or trespassing thereupon or stocking laterite stones or carrying out any work of construction. The defendants were directed under the judgment to remove the laterite stones stocked in the suit property and to restore the land to its original position. The defendants were also directed to demolish the structure constructed on the suit property and to restore the land to its original position. Two months time was given to the defendants. The judgment is dated 03.07.2002. The decree in terms of the judgment came to be passed on that day.

The petitioner took out the execution proceedings for demolition of illegal construction of houses made in the suit property with police protection and in the alternative to detain the Judgment Debtor in civil prison. The petitioner visited the suit premises with the bailiff of the Court to execute the decree. The bailiff made a report that he was unable to locate the structure. This was despite the fact that the bailiff had gone with the petitioner himself, who found it difficult to identify the structure as there were more houses. The bailiff, therefore, sought to obtain the service of qualified Surveyor in the report made to the Court. Based upon the bailiff''s report the Executing Court passed its order dated 18.02.2005 dismissing the application because the Court could not resort to the matter beyond the decree to locate the structure. Hence, the execution came to be dismissed because the structure could not be located.

The petitioner filed another execution application on 19.05.2006. This execution application was to demolish all the illegal houses in the suit property with police protection and in the alternative to detain the Judgment Debtor in civil prison. This application has been dismissed on the ground that it was barred by the principles of res judicata. The petitioner who has appointed the surveyor to locate the structure sought to locate it through the plan prepared by the Surveyor. The Court observed that that would be going beyond the decree and hence, it held that it cannot resort to matters of locating the structure upholding the objections of the Judgment Debtor. Hence, the application for execution itself came to be dismissed on 19.10.2007.

The petitioner applied for review only of the first order dated 18.02.2005 and the first execution application taken out by the petitioner. On 05.03.2008 the review application came to be dismissed on the ground of considerable delay of 1020 days which remained unexplained. The dismissal of the review petition upon non-condonation of delay has not been challenged.

The petitioner has challenged the two orders in execution of the Executing Court under two separate applications essentially with regard to the same mode of execution which were passed on 18.02.2005 and 19.10.2007.

Both the orders relate to similar applications made under Order 21, Rule 32 of C.P.C. The first order dated 18.02.2005 has been passed merely upon the report of the bailiff. It does not even show that the parties are heard or that the matters in issue are agitated. The second application has been dismissed essentially on the principles of the res judicata. The Advocate for the respondent drew my attention to the Explanation (vii) of Section 11 of the C.P.C. The provisions of Section 11 would indeed apply to the execution applications. This would be made applicable for execution application taken out under the same mode of execution which have been agitated and considered and disposed of.

Since the first order shows that neither the Judgment Debtor nor the Decree Holder was heard, the second application cannot be taken to be tried for matters directly and substantially in issue between the parties litigating under the same title in which that issue was heard and finally decided. Hence, to that extent the order on the second execution application dated 19.10.2007 does suffer from a basic infirmity. That order has been passed also upon the ground that the location of the suit structure for its demolition cannot be done in Execution as that would tantamount to going beyond the decree. That observation is distinctly incorrect. When a party obtains the decree of a court of law and seeks to execute it, the Executing Court is bound to assist that party in executing the decree. In this case, the suit structure could not be identified. The Decree Holder called upon the Court to appoint the Surveyor to locate the structure to be demolished which the Court desisted from granting because that would be going beyond the decree.

It is for the plaintiff to identify the suit structure and describe the suit structure in the plaint so as to enable the execution of the decree. It is for the Decree Holder to specify with reasonable certainty the suit structure so described either in a plan or through the help of a Surveyor. It is not for the Court to appoint the Surveyor to locate the structure and hence, to that extent the order does not suffer from any infirmity. It is seen that the decree which has been passed is for demolition of the structure. The very first application for execution is for demolition of illegal construction of houses. The second execution application is for demolition of all the illegal houses in the suit property. It is to be seen whether the petitioner can obtain a writ of the Court challenging the order dismissing execution application under such circumstances. The Advocate for the petitioner stated that he places essentially challenges to the order on the second execution application dated 19.10.2007. The order on the first execution application has been passed on 18.02.2005. The review petition filed against that order has also been dismissed. The delay in filing the review petition was not explained. The second execution application, though it survives since the petitioner was not heard upon the order dismissing the first execution application, relates to the different property to be demolished under the same decree since it relates to the demolition of all the illegal houses in the suit property. The decree obtained is not in respect of demolition of all the illegal houses in the suit property. The impugned order has considered only the suit structure which could not be identified. The petitioner has not sought the relief in respect of the identification sought to be made by him through his own efforts at obtaining a plan through a Surveyor or otherwise for the structure decreed to be demolished. A writ for demolishing all the illegal houses as shown in his second execution application cannot be granted. The petitioner does not deserve any relief. The writ petition is dismissed. Rule discharged.