The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP Nos. 578 OF 2017 & 1358 OF 2017 (Applications under Article 227 of the Constitution of India) ***** CMP No. 578 OF 2017 Umesh Ch. Dixit and others …… Petitioners Bhikari Mahakud and others -Versus- .…… Opp. Parties Advocates appeared: For Petitioners : Mr. S.S. Rao, Senior Advocate being assisted by Mr. Syed Ejazul Haque, Advocate For Opp. Parties : Mr. Ajodhya Ranjan Dash, Advocate CMP No. 1358 OF 2017 Bhikari Mahakud and others …… Petitioners Umesh Ch. Dixit and others -Versus- .…… Opp. Parties Advocates appeared: For Petitioners : Mr. Ajodhya Ranjan Dash, Advocate
Legal Reasoning
For Opp. Parties : Mr. S.S. Rao, Senior Advocate being assisted by Mr. Syed Ejazul Haque, Advocate CORAM : MR. JUSTICE K.R. MOHAPATRA
Decision
------------------------------------------------ Heard and disposed of on 18.12.2023 ---------------------------------------------- JUDGMENT K.R. Mohapatra, J. 1. This matter is taken up through hybrid mode. CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 1 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 2 // 2. CMP No.578 of 2017 has been filed assailing the order dated 15th February, 2017 passed by learned Additional Civil Judge (Junior Division), Basudevpur in Execution Case No.4 of 2013, whereby the execution case was dropped holding that the decree for demarcation is not executable. 3. CMP No.1358 of 2017 has been filed to set aside the Commissioner’s report dated 26th March, 2016 and order dated 2nd February, 2017, whereby the Commissioner’s report was accepted. 4. Since both the CMPs arise out of Execution Case No.4 of 2013 and relates to a chain of events in accepting the Commissioner’s report as well as dropping of the execution case accepting the said Commissioner’s report, the same are taken up together for convenience. The parties are described as per their status in the execution case. 5. C.S. No.22 of 2009 was filed by the D.Hrs for demarcation of the suit property as well as for injunction. The suit has been decreed vide judgment dated 30th March, 2013 with the following order: “The suit of the plaintiffs be and same is decreed on contest against the Def. Nos. 1, 2, 3, 4, 5, 6 & 7 and on ex-parte against Def. No. 8. Both parties are at liberty to get the boundary line of the suit property demarcated as per prayer in the plaint, amicably within a period of 3(three) months failing which, the parties may take resort to the process of this Court for the said purpose. Once boundary lines of the suit plots are duly demarcated, the contesting defendants will be permanently injuncted from from entering disturbing the plaintiffs over the suit land. But in the present the peaceful possession of the suit property and into CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 2 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 3 // facts and circumstances, there is no order as to cost.” 6. As amicable demarcation of the property could not be possible within the time stipulated, the D.Hrs filed Execution Case No.4 of 2013. The J.Drs filed an application under Section 47 CPC, which was registered as I.A. No.201 of 2016. The said application was rejected vide order dated 6th February, 2017. Thereafter, Plaintiff in C.S. No.83 of 2015 filed an application to be impleaded as party to the execution case (CMA No.1486 of 2015), which was rejected. In due course, learned executing Court appointed a Civil Court Commissioner for demarcation of the property, who submitted his report on 26th March, 2016. Relevant portion of the said report reads as under: “Then the DHR No.3 identified me the decretal plot which is to be demarcated and supplied me the original village M.S. map of Mouza Apartipur. I was directed by the Hon’ble Court for demarcation of southern side of ‘Ka’ schedule land, eastern side of ‘Kha’ schedule land and Eastern and Southern side of ‘Ga’ schedule land as per plaint. I verified the records and original village map and started my measurement work on the field. By checking from various fix point nearby the suit plot and finally I demarcated the Southern side of ‘Ka’ schedule property, Eastern side of ‘Kha’ schedule property and Eastern and Southern side of ‘Ga’ schedule property. The DHRs and his labourers put pucca pillars on Southern side of ‘Ka’ schedule property and Southern side of ‘Ga’ schedule property. But the eastern side of ‘Kha’ & ‘Ga’ schedule property though I have demarcated, but the DHRs could not pillaring on it because on the JDRs have encroached some portion and created building house and some thatched house over the decretal plot. the thatched house are used as cowshed and kitchen which I have clearly shown in my demarcation map. The DHRs and their labourers put pucca pillars on Southern side of ‘Ka’ in presence of police & ‘Ga’ schedule property Personnel, Villagers and JDRs. the demarcating line CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 3 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 4 // So without demolition of house which is standing over the decretal plot, I though demarcated but the DHRs could not put pucca pillar on it. So necessary demolition of house and order may kindly be passed.” 7. Although the D.Hrs raised objection to the said report, but overruling the same, learned executing Court accepted the report vide its order dated 2nd February, 2017. The report of the Commissioner as well as the order dated 2nd February, 2017 is under challenge in CMP No.1358 of 2017. In furtherance to the said report, the D.Hrs filed an application on 8th February, 2017 for demolition of the structures made by the J.Drs over eastern side of the ‘Kha’ and ‘Ga’ Schedule property at their cost and to deliver possession to them. While considering the said application, learned executing Court held that it cannot go behind the decree and direct demolition of the structure as it would amount to execute a decree of mandatory injunction, which is neither prayed for nor granted in the suit. 8. Mr. Rao, learned Senior Advocate for the D.Hrs submits that Order XXI Rule 32(5) CPC clearly states that while executing an order of injunction, the Court in lieu of or in addition to any of the processes of execution of a decree of permanent injunction, the Court can act as required to be done for execution of a decree. Thus, the executing Court has ample jurisdiction to direct demolition of the structure for execution of the decree of permanent injunction. It is his submission that even if there would not have been any prayer for demarcation of the suit property, still then learned executing Court has power to direct for demarcation of the property for execution of a decree of permanent prohibitory injunction. Thus, learned executing CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 4 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 5 // Court should have exercised its discretion under Order XXI Rule 32(5) CPC to direct demolition of the structure for putting of poles for effecting the decree of permanent injunction. In support of his case, Mr. Rao, learned Senior Advocate relied upon the case of B. Gangadhar –v- B.G. Rajalingam, reported in AIR 1996 SC 780, wherein at Paragraph-6, it is held as under: “6. Rule 35(3) of Order 21, itself manifests that when a decree for possession of immovable property was granted and delivery of possession was directed to be done, the Court executing the decree is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the decree for possession. That power also includes the power to remove any obstruction or super-structure made pendent lite. The exercise of incidental, ancillary or inherent power is consequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgment debtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any construction on the property pending suit, the decree- holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of in executable driving the plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceeding.” the Court. Otherwise, the decree becomes 9. It is his submission that when in a decree for delivery of possession, the Court can direct for demolition of unauthorized structure made, there is no legal impediment for a direction to demolish the structure for effectuating the decree of permanent injunction. He also relied upon the case law in M/s. M. Laxmi & Co. –v- Dr. Aant R. Deshpande and another, reported in AIR 1973 SC 171, in which it is held as under: CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 5 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 6 // It is true that the Court can take notice of “27. subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the court also takes notice of such event. If the property which is the subject matter of suit is no longer available the Court will take notice of such event. The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of. justice……..” 10. He, therefore, submits that subsequent events can be taken into consideration by the executing Court to sub-serve the ends of justice by shortening the litigation. The executing Court is not powerless to take all such ancillary and incidental steps for execution of decree even if no such direction is made in the suit itself. 11. He further relied upon the case of Sameer Khan –v- Bindu Khan, reported in AIR 1998 SC 2765, wherein it is observed as under: “11. At the first blush the above interpretation appeared attractive. But on a closer scrutiny we feel that such interpretation is not sound and it may lead to tenuous results. No doubt the wording as framed in Order 21 Rule 32(1) would indicate that in enforcement of the decree for injunction a judgment-debtor can either be put in civil prison or his property can be attached or both the said courses can be resorted to. But sub-rule (5) of Rule 32 shows that the court need not resort to either of the above two courses and instead the court can direct the judgment- debtor the perform, the act required in the decree or the court can get the said act done through some other person appointed by the court at the cost of the judgment-debtor. Thus, in execution of a decree the Court can resort to a threefold operation against disobedience of the judgment- debtor CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 6 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 7 // in order to compel him to perform the act. But once the decree is enforced the judgment-debtor is free from the tentacles of Rule 32. A reading of that Rule shows that the whole operation is for enforcement of the decree. If the injunction or direction was subsequently set aside or if it is satisfied the utility or Rule 32 gets dissolved.” 12. Reliance to the case of Kuni Mohanty –v- Upendra Barik and others, reported in 2017 (Supp.-I) OLR 937 was also placed by Mr. Rao, learned Senior Advocate, wherein at Paragraph-12, this Court held as under: “12. Order-21, Rule-32 of the Code concerns with the execution of a decree for an injunction. The various clauses of Rule 32 i.e 1, 2 and 3 are but indirect methods devised to enforce compliance of injunction decrees, each being an intermediate step for further action. From this it cannot, be concluded that execution of decree for prohibitory injunction should end there. When the judgment-debtor commits gross violation of the decree so as to nullify the very decree, the execution cannot be so limited driving the decree-holder to file a fresh suit. Such an interpretation cannot be entertained and it would amount to take rather a too technical and narrow view of the matter. The law has always expressed its dislike for multiplicity of proceedings and has leaned in favour of an interpretation which would prevent multiplicity of proceedings rather than the one which will generate it. The significant words used there are ‘the court may' in lieu of "or in addition to all or any of the processes aforesaid i.e. attachment of property or detention in civil prison". This expression enlarges the scope of authority of the court to execute the decree in the manner provided in sub-rule "(1) or (2)" and also under sub-rule (5). The rule also empowers the court to 'direct that the act required to be done' may be done so far as practicable by the decree-holder etc. A person disobeys an injunction not only if he fails to perform an act which he is directed to do but also when, he does an act which he is prohibited from doing. There is as much disobedience in the one case as in the other. Thus the Court has the power to execute the decree by getting the obstructions removed and obtaining a fresh decree for the purpose is not CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 7 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 8 // necessary. The explanation introduced to sub-rule-5 of the said rule clearly reveals the anxiety of the Legislature to ensure that the Executing Court is able to enforce obedience not only of decrees for mandatory injunction but also decrees for prohibitory injunction.” He, therefore, submits that learned executing Court should not have washed its hands in executing a decree stating that it cannot go behind the decree to demolish the structure for its execution. 13. Mr. Dash, learned counsel for the J.Drs. vehemently objects to the same. It is his submission that direction for demolition of the structure was neither prayed for nor made in the suit itself. The executing Court is powerless to go behind the decree and direct for demolition of the structure. During pendency of the suit, the D.Hrs had also filed an application under Order XXXIX Rule 2-A CPC, but the same was not entertained. It is his submission that since the report of the Commissioner itself is defective and learned executing Court has not given a positive finding that there is unauthorized construction over the suit land, the issue raised by the D.Hrs is premature and the judicial time should not be wasted in delving into the same. 13.1. It is his submission that a fresh Civil Court Commissioner should be deputed to demarcate the property and if in his opinion, there is unauthorized construction, learned executing Court may take into consideration the same inviting response to the Commissioner’s report from the D.Hrs as well as from J.Drs and proceed with the matter accordingly. He, therefore, submits that if the report of the Commissioner is not acceptable, then further question with regard to acceptance as CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 8 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 9 // well as acting upon such report are immaterial and otiose. He also relied upon the case of Gurdev Singh –v- Narain Singh, reported in (2007) 14 SCC 173, wherein it is observed thus; “7. We agree with the said contention. A bare perusal of the decree in question would clearly demonstrate that the appellant herein was restrained by a permanent injunction from planting any tree on Khasra No. 17/2 on the one side and Khasra Nos. 218/1 and 17/1 on the other side. The decree did not speak of removal of any tree which had already been planted. The executing court, as noticed hereinbefore, while interpreting the said decree proceeded completely on a wrong premise to hold that there should not be any tree within two karams on either side of the common boundary of the parties. Such an interpretation evidently is not in consonance with the decree. A jurisdictional error, thus, has been committed by the High Court. tenor of the 8. It is well settled that executing court cannot go behind the decree. As the decree did not clothe the decree-holder to pray for execution of the decree by way of removal of the trees, the same could not have been directed by the learned executing court in the name of construing the spirit of the decree under execution.” 13.2 It is submitted that learned executing Court rightly dropped the proceeding holding that it cannot go behind the decree. In Gurdev Singh (supra), the Hon’ble Supreme was considering removal of trees from the suit land, which was not directed in the suit. He also relied upon the case of Vasudev Dhanjibhai Modi –v- Rajabhai Abdul Rehman and others, reported in 1970 (1) SCC 670, which also reiterates the aforesaid observation. Relevant portion of which reads as under: “6. A court executing a decree cannot go behind the decree : between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 9 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 10 // law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.” 14. Heard learned counsel for the parties. Perused the case record, more particularly, the impugned order dated 15th February, 2017. 15. No doubt, in the execution case, direction was made to the Commissioner to submit a report. Accordingly, the report was submitted stating that although the suit land was demarcated as per the direction, but the D.Hrs could not fix concrete pillar on the eastern side boundary line of ‘Kha’ and ‘Ga’ schedule property as there was construction thereon. Thus, he opined that without demolition of those constructions, no demarcation pillars could be fixed. Vide order dated 2nd February, 2017, the report submitted by the Commissioner was accepted in spite of objection of the J.Drs. Subsequently, the D.Hrs filed an application for demolition of the structure at their cost and while dealing with the same, order dated 15th February, 2017, was passed. 16. Learned executing Court has discussed the matter in threadbare. It took into consideration the provision under Order XXI Rule 32(5) CPC and held that when the decree is for demarcation and there is no specific direction in the suit to demarcate the land by demolishing any structure, if required, the executing Court cannot go behind the decree. It is held that the suit is for prohibitory injunction and by directing so, the executing Court would proceed to execute a decree for mandatory injunction, which was neither prayed for nor directed CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 10 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 11 // in the suit. Accordingly, he rejected petition and consequently dropped the execution case. 17. The decree passed in C.S. No.22 of 2009 is in two parts. First part relates to demarcation of the suit property and second part relates to effecting the decree for permanent prohibitory injunction. In fact, no direction has been issued in the suit to demarcate the land by demolishing any structure, if required. As held in the case of B. Gangadhar (supra), the executing Court is not powerless to do the act ancillary and incidental for execution of a decree. It cannot relegate the D.Hr to file a fresh suit seeking for a direction for demolition of the structure to execute the decree of demarcation/permanent injunction. Although, Order XXI Rule 32(5) CPC is in relation to executing a decree of permanent injunction, but it clearly stipulates that the executing Court is not powerless to direct demolition of the property, if the same is required for execution of a decree be it for demarcation or for recovery of possession. In the case of Kuni Mohanty (supra), this Court has categorically held that the execution cannot be so limited directing the D.Hr to file a fresh suit. 18. In order to execute a decree of permanent injunction, the Court has to issue a Commission for demarcation of the suit property. Thus, the demarcation is made only to facilitate execution of the decree for permanent injunction. As such, learned executing Court has committed an error in holding that no direction for demolition of the property can be given for demarcation of the suit land. CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 11 of 12 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 19:17:02 // 12 // 19. Accordingly, the impugned order dated 15th February, 2017 is set aside. The demarcation in question was made in the year, 2017 and in the meantime almost seven years have already elapsed. Thus, demarcation, if any, made is of no avail due to passage of time. Hence, this Court directs that learned executing Court should revive Execution Case No.4 of 2013 and proceed with the same from the stage of issuance of Writ to the Commissioner for demarcation of the property and the Commissioner may demarcate the suit property keeping in mind the Sabik and Hal relation of the suit land. Learned executing Court then proceed with the execution case basing upon the report of the Commissioner and keeping in mind the discussions made hereinabove. 20. In view of the order passed, the Commissioner’s report dated 26th March, 2016 and order dated 2nd February, 2017 passed in Execution Case No.4 of 2013 become infructuous. 21. With the aforesaid observation and direction, both the CMPs are disposed of accordingly. In the facts and circumstances of the case there shall be no order as to cost. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 18th December, 2023/Madhu CMP No.578 OF 2017 & CMP No.1358 of 2017 Page 12 of 12