Case Note & Summary
The Mormugao Port Authority (Petitioner) filed a Writ Petition challenging the order dated 10.12.2018 passed by the Civil Judge Senior Division at Vasco Da Gama, dismissing Execution Application No. 21/2013 filed by the Petitioner as Decree Holder. The Civil Court had decreed Special Civil Suit No. 12/2008/C by Judgment and Decree dated 10.04.2013, which attained finality as no appeal was filed. The decree sought demolition of a house and retaining wall constructed on the suit property. The suit property was originally described under Chalta No. 8 of P.T. Sheet No. 13, but during evidence, it was revealed that the land was renumbered as Chalta No. 4 of P.T. Sheet No. 8. The Trial Court's findings at paragraph 24 and 31 described the illegal structures: a house encroaching upon 45 sq. mtrs. and a retaining wall of 10.60 mtrs. The Executing Court dismissed the execution application on the ground that no structure was shown in the survey plan of Chalta No. 4. The High Court held that the Executing Court proceeded on an erroneous factual basis and failed to exercise jurisdiction vested under Section 51 CPC. The Court observed that an executing court has all powers to determine questions relating to identity of structures, including by appointing a Commissioner and inspecting the site. The impugned order was quashed and set aside, and the matter was remanded to the Executing Court to follow the procedure under Order 21 read with Section 51 CPC to identify the structures and execute the decree. The parties were directed to appear before the Executing Court on 11.03.2025.
Headnote
A) Civil Procedure - Execution of Decree - Section 51, Order 21 CPC - Powers of Executing Court - The Executing Court has all powers under Section 51 CPC to determine questions relating to identity of structures which were subject matter of the decree, including by appointing a Commissioner and inspecting the site. The Executing Court failed to exercise such jurisdiction, leading to erroneous dismissal of execution application. (Paras 5-7) B) Property Law - Demolition of Illegal Construction - Chalta No. 4 of P.T. Sheet No. 8 - The suit property originally described under Chalta No. 8 was renumbered as Chalta No. 4. The decree pertained to an illegally constructed house encroaching upon 45 sq. mtrs. and a retaining wall of 10.60 mtrs. The Executing Court erroneously proceeded on the basis that no structure existed in the survey plan. (Paras 4-5)
Issue of Consideration
Whether the Executing Court erred in dismissing the Execution Application on the ground that no structure was shown in the survey plan, despite the decree identifying the structures to be demolished.
Final Decision
The impugned order dated 10.12.2018 is quashed and set aside. The matter is remanded to the Executing Court to follow procedure under Order 21 read with Section 51 CPC to identify the structures subject to the decree and proceed to execute the decree in accordance with law. Rule made absolute. No order as to costs. Parties to appear before Executing Court on 11.03.2025.
Law Points
- Executing Court has power under Section 51 CPC to determine identity of structures
- Executing Court must exercise jurisdiction to identify structures subject to decree
- Order 21 CPC read with Section 51 CPC empowers executing court to appoint commissioner and inspect site
