Smt. Jijai Tukaram Pednekar and Others vs Shri Tukaram Sukdo Fogeri and Smt. Shakuntala Tukaram Fogeri

C.L. Pangarkar, J.—This Writ Petition has been filed against the order passed by the learned Civil Judge whereby an application filed by the Judgment-debtor objecting to the execution of decree has been dismissed. A decree was passed in favour of the Decreeholder/respondent on 6.7.2006. The Decree-holder and the Judgment-debtor i.e. the respondent and the petitioner respectively are immediate neighbours. The plaintiff no. 1/Decree-holder instituted a suit alleging that the Judgment-debtors/defendants had raised height of the common wall between the two houses and raised the height of roof on the common wall. It was the contention of the Decree-holder that due to such raising of the height of the roof and the wall of the defendant''s house, the eaves water falls over the wall in between the two houses. It is further his contention that due to this fact, a damage is caused to the common wall.

The suit was decreed by the Trial Court. The defendant/petitioner preferred an appeal before the District Judge. The learned Judge of the Fast Track Court allowed the appeal and amended the final order passed by the learned Civil Judge. By the said order, learned Judge of the Fast Track Court directed the defendants to reduce the height of the wall which he had increased so as to bring the roof of his house in line with that of the plaintiff''s house. The decree has admittedly assumed the finality. The respondents/Decree-holders filed an execution proceedings. A notice was issued to the Judgment-debtors/Petitioners. The Judgment debtors /petitioners filed several applications in the Court. The Executing Court appointed the Commissioner, to find out as to how the height of the roof of the defendants/petitioners could be reduced and how the job can be done. The Municipal Engineer who was appointed as a Commissioner, submitted his report on 12.9.2007. Subsequently, the Judgment-debtors filed an application before the Executing Court purporting to be an application for objection at exbt. 35. The said exbt. 35 along with the Decree-holders'' application under Order 21 rule 38, were decided together and both the applications were dismissed by the learned Judge. This happened on 3.5.2008. Later, the Judgment-debtors submitted the report of one Surveyor Shri Sitakant Kamat. The said Surveyor opined that the decree passed by the Court cannot be executed.

Again, an application at exbt. 45 was filed objecting to the execution of the decree and the same was rejected by the learned Civil Judge. Hence, this petition.

Shri Pangam, learned Counsel for the Petitioner submits before me that the learned Judge of the Trial Court has not in fact considered the objections raised by him. According to him, there are two walls and therefore the wall that is belonging to the Judgment debtors cannot be pulled down and that this objection is not considered by the learned Judge. He submits that such an objection can be raised by the Judgment-debtor u/s 47 of the CPC in the light of the decision reported in Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Others, . There is no doubt that when a Judgment-debtor raises an objection the same objection has to be decided u/s 47. The present question as is raised by Mr. Pangam, Advocate for the Petitioners, is not a question which can be decided by the Court u/s 47. One has to bear in mind that an Executing Court cannot go behind a decree. Once it is found by the Court that there is a common wall and the finding has assumed finality, the same cannot be disturbed by the Executing Court at all under the garb of deciding objection u/s 47.

The Judgment-debtors have come before this Court in this Writ Petition. The jurisdiction of this Court is, therefore, limited and no relief can be granted unless it is shown that the court has wrongly exercised the jurisdiction. Therefore previous conduct of the Judgment-debtors has also to be taken into account. My attention was invited to the various applications filed by the Judgment-debtor in the execution proceedings. These are reproduced as follows: -

i. "Reply to the Application dated 30/11/2007" dated on 15/12/2007 at paragraph 4 on page No. 2;

Paragraph 4: That with respect to para no: 11 it is submitted that Judgment Debtors are very much interested in executing the order of Honourable fast track court of mapusa and only due to some financial difficulty Judgment debtors are unable to pay the estimated cost made by the municipal engineer"

ii. "Reply to the Application dated 04/06/2007" dated 05/06/2007 at paragraph 8 on page 2. "

Paragraph 8: That the Judgment Debtors states that they are still willing to complete the said work and hence some more time is required to complete the same i.e. till the rains.

iii. Application of the Decree holder dated 29/06/2007 appointment of Executive Engineer to which the Judgment Debtor has given no objection.

iv. "Reply dated 14/05/2007 at paragraph 4 and prayer.

Paragraph 4: "Judgment Debtor states that he is ready to execute the said Decree and the question of appointing competent contractor does not arise at all."

Prayer: Therefore it is prayed that 8 days time may be granted to execute the said Decree of the honourable court.

v. "Reply of Judgment debtor darted 23/04/2007 at paragraph 9 and prayer.

Paragraph 9: That the Judgment Debtor states that when the Judgment Debtor themselves are ready to comply with the orders of the Honourable Fast Track Court and hence the question giving and directions by this honourable court does not arise at all.

Prayer C: That bailiff of this honourable court may be appointed to observe the compliance of the Decree.

If these replies are seen, it is obvious that the Judgment debtors themselves were representing to the Court time and again that they themselves are ready to comply with the decree. This was done by the Judgment debtors not only once, but it appears on four occasions. Where such representations were made before the Court, the Judgment debtors could not have and should not have raised the objection after conceding to the fact that they have to comply with the order. This shows lack of bonafides on the part of the Judgment debtors. In the circumstances, I do not find any substance in the present petition. The petition is therefore, dismissed in limine.