The Executing Court has a duty to exercise jurisdiction under Section 51 CPC to determine all questions relating to decree execution, including the identification of structures. (Para 6)

Non-exercise of jurisdiction by the Executing Court amounts to an illegality that can be corrected under Article 227 of the Constitution of India. (Para 7)

The High Court held that the Executing Court had erroneously failed to exercise its jurisdiction under Section 51 of the Code of Civil Procedure, 1908. (Para 6) The High Court quashed the impugned order and remanded the matter to the Executing Court for proper identification of the structures and execution of the decree. (Para 7) The Executing Court was directed to follow the procedure under Order 21 CPC and use available powers, including appointing a Commissioner and conducting site inspections. (Para 7)

Final Order:

• Impugned order quashed and set aside. (Para 8)
• Matter remanded to the Executing Court for fresh consideration and proper execution of the decree. (Para 8)
• Parties directed to appear before the Executing Court on 11th March, 2025. (Para 10)

Acts and Sections Discussed:

• Constitution of India, 1950 – Article 227 – Supervisory jurisdiction of the High Court.
• Code of Civil Procedure, 1908 – Section 51 – Powers of executing court – Order 21 – Procedure for execution of decrees.
• Major Port Authorities Act, 2021 – Jurisdiction and authority of Mormugao Port Authority.

Subjects:

Execution Proceedings – Jurisdiction of Executing Court – Illegal Construction – Encroachment – Decree Execution – Powers of Executing Court – Remand Order.

Facts:

a. The Petitioner, Mormugao Port Authority, was the decree holder in Execution Application No. 21/2013.
b. The Civil Court had decreed Special Civil Suit No. 12/2008/C on 10th April, 2013, for demolition of an illegally constructed house and retaining wall in the suit property.
c. The decree attained finality due to the absence of an appeal from the Respondent.
d. The Executing Court dismissed the execution application on 10th December, 2018, on the ground that no structure was recorded in the survey plan under Chalta No. 4 of P.T. Sheet No. 8.

Issues:

• Whether the Executing Court erred in refusing to execute the decree despite having the power under Section 51 of the Code of Civil Procedure, 1908?
• Whether the Executing Court had jurisdiction to determine the identity of the structures in execution proceedings?

Submissions/Arguments:

• Petitioner: Argued that the Executing Court failed to exercise its jurisdiction under Section 51 CPC, despite clear findings in the trial court judgment identifying the illegal construction.
• Respondent: Contended that the property description differed in records, making execution impractical.