Case Note & Summary
The dispute arose from a suit filed by the respondent (plaintiff) seeking a declaration that the petitioner (defendant) had no right to discharge rain water on the plaintiff's land, possession of an area measuring 6.75 square meters, and a mandatory injunction to remove the construction erected by the defendant on the plaintiff's land. The trial court partly decreed the suit on 29 August 2009, granting only the relief of possession and directing the defendant to hand over possession of the specified area. The decree did not grant the prayer for mandatory injunction. The defendant’s appeal against the decree was dismissed, and the decree attained finality. In execution proceedings, the decree holder applied for possession and also sought demolition of the construction existing on the decree land. The judgment debtor objected, but the executing court by order dated 28 August 2017 rejected the objections and directed the judgment debtor to demolish the existing structure within fifteen days and remove any valuable material. The judgment debtor then filed the instant writ petition challenging that order, contending that the executing court had exceeded its jurisdiction because the decree was only for possession and did not include a mandatory injunction for demolition. The High Court examined the provisions of Order XXI of the Code of Civil Procedure, 1908. It noted that after the decree was passed, a notice under Order XXI Rule 22(1) was issued to the judgment debtor, who did not raise any objection to the executability of the decree at that stage. Relying on the Division Bench decision in Laxman Bala Surve and ors. vs. M/s Posh Builders, Bombay and anr. and the Supreme Court decision in Barkat Ali and anr. vs. Badrinarain (Dead) by LRrs., the court held that failure to object to execution after such notice operates as constructive res judicata and precludes raising objections at a later stage. The court also relied on Order XXI Rule 35(3) of the Code and Section 52 of the Transfer of Property Act, 1882, and a line of precedents to hold that an executing court has the power to pass incidental, ancillary, or necessary orders for the effective enforcement of a decree for possession. A direction to demolish a structure standing on the portion of the land of which possession is to be delivered is an incidental order. Thus, the executing court acted within its jurisdiction. Consequently, the writ petition was dismissed, and the time granted for demolition was extended by four weeks from the date of judgment. No costs were awarded.
Headnote
A) Civil Procedure - Execution of Decrees - Constructive Res Judicata - Code of Civil Procedure, 1908, Order XXI Rules 22(1) and 23(1) - The judgment debtor failed to raise any objection to executability of the decree after receiving show-cause notice under Rule 22(1); the Court held that under Rule 23(1), failure to object operates as constructive res judicata, barring later objections - Held that the executing court correctly rejected the belated objection (Paras 6, 8). B) Civil Procedure - Execution of Decrees for Possession - Incidental Orders for Effective Possession - Code of Civil Procedure, 1908, Order XXI Rule 35(3) and Transfer of Property Act, 1882, Section 52 - The decree was for possession simplicitor; the executing court directed demolition of a structure standing on the decree land as an incidental order to deliver effective possession - Held that such ancillary direction is within jurisdiction and permissible to enforce the decree (Paras 7, 8).
Issue of Consideration
Whether the executing court could direct demolition of a structure when the decree for possession did not include a mandatory injunction for demolition
Final Decision
The writ petition was dismissed. The executing court's order was upheld as within jurisdiction. The direction to demolish the existing structure was sustained, but the time for demolition was extended by four weeks from the date of the judgment (April 17, 2018). No costs.
Law Points
- Order XXI Rule 23(1) CPC: if judgment debtor fails to object after notice under Rule 22
- bar of constructive res judicata applies
- Order XXI Rule 35(3) CPC: executing court can pass ancillary orders to deliver possession
- Section 52 Transfer of Property Act
- 1882
