Case Note & Summary
The petitioners, judgment debtors in Execution Proceedings No. 29/1994, were declared mundkars of their dwelling house and cowshed by order dated 31.10.1988 under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. Subsequently, the decree holders filed R.C.S. No. 293/1991/D seeking demolition of structures beyond the permissible area of 120 sq m for the house and 23 sq m for the cowshed. The suit was decreed in toto in appeal (R.C.A. No. 38/1992), and the decree became final. In execution, the learned Civil Judge, Junior Division, Margao, passed an order on 29.09.2005 appointing a Commissioner to demarcate the said areas, and by order dated 13.04.2006 appointed Shri Moniz, a Civil Engineer, as Commissioner. The judgment debtors challenged both orders. The High Court noted that the first order was not challenged and the second was consequential. The court held that the appointment of a Commissioner was a proper step in execution to identify the exact area to be demolished, and dismissed the petition with costs.
Headnote
A) Civil Procedure - Execution of Decree - Demarcation by Commissioner - Section 47, Code of Civil Procedure, 1908 - The executing court appointed a Commissioner to demarcate the area of the house (120 sq m) and cowshed (23 sq m) to facilitate execution of a demolition decree - The judgment debtors challenged the appointment, but the court held that the Commissioner was necessary to identify the exact area to be demolished - The order was upheld as a proper step in execution (Paras 2-6).
Issue of Consideration
Whether the executing court could appoint a Commissioner to demarcate the area of the dwelling house and cowshed for the purpose of executing a decree for demolition of unauthorized constructions.
Final Decision
The High Court dismissed the writ petition with costs, upholding the orders of the executing court appointing a Commissioner to demarcate the area of the house and cowshed.
Law Points
- Execution of decree
- Demarcation by Commissioner
- Mundkar rights
- Goa Mundkar Act
- 1975
- Demolition of unauthorized construction
- Finality of decree
Case Details
2006 LawText (BOM) (07) 100
Writ Petition No. 218 of 2006
Shri N. K. Sawaikar for Petitioners, Shri A. F. Diniz for Respondent No. 1
Shri Rafael Fernandes (since deceased, represented by legal heirs) and others
Smt. Terezinha Rodrigues and others
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Nature of Litigation
Writ petition challenging orders of executing court appointing Commissioner to demarcate area for demolition.
Remedy Sought
Petitioners (judgment debtors) sought to quash orders dated 29.09.2005 and 13.04.2006 appointing a Commissioner.
Filing Reason
Petitioners claimed that the appointment of Commissioner was not warranted and that the executing court exceeded its jurisdiction.
Previous Decisions
Order dated 31.10.1988 declaring petitioners as mundkars; decree in R.C.S. No. 293/1991/D as confirmed in R.C.A. No. 38/1992 ordering demolition of unauthorized constructions; execution proceedings initiated.
Issues
Whether the executing court could appoint a Commissioner to demarcate the area of the house and cowshed for execution of the demolition decree.
Submissions/Arguments
Petitioners argued that the appointment of Commissioner was not necessary and that the executing court had no jurisdiction to do so.
Respondents contended that the first order was not challenged and the second was consequential; the Commissioner was needed to identify the exact area to be demolished.
Ratio Decidendi
The appointment of a Commissioner to demarcate the area of the house and cowshed is a proper step in execution proceedings to identify the exact area to be demolished as per the decree, and the executing court has jurisdiction to do so under Section 47 CPC.
Judgment Excerpts
The petitioners, (JDs for short), challenged the Orders dated 29.09.2005 and 13.04.2006 of the learned Civil Judge, Junior Division, Margao, in the said Execution Proceedings.
By Order dated 31.10.1988, the JDs were declared the Mundkars of their dwelling house bearing no. 1155, situated in survey no. 19/1 of Village Curtorim, to the extent of 143 square metres in area i.e. 120 square metres of the house and 23 square metres of the cowshed.
Procedural History
Order dated 31.10.1988 declaring JDs as mundkars. R.C.S. No. 293/1991/D filed by DHs, partly decreed by trial court, decreed in too in R.C.A. No. 38/1992. Execution proceedings No. 29/1994 initiated. Order dated 29.09.2005 appointing Commissioner to demarcate area. Order dated 13.04.2006 appointing Shri Moniz as Commissioner. Writ Petition No. 218/2006 filed challenging both orders.
Acts & Sections
- Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975:
- Code of Civil Procedure, 1908: Section 47
