SOMAVALLY AND ORS. Vs. PRASANNA KUMAR AND ORS.

JUDGEMENT

(1.) An interesting legal question pop up for determination:

(2.) Brief facts: Petitioners are the defendants in O.S. No. 342 of 2005 on the file of the Munsiff's Court, Chengannur. Challenge in this revision petition is against the order passed by the executing court in E.P. No. 66 of 2011, wherein the defendants in the suit for fixation of boundary claimed demarcation of a common boundary between their property and that of the plaintiffs. In this context, it is relevant to note that the suit was one for declaration of the plaintiffs' right over plaint schedule property, prohibitory injunction against the defendants from trespassing into the property and also for fixation of common boundary. The suit was partly decreed by the trial court declaring the plaintiffs' right over the plaint schedule property and also holding that the line IOM in Ext. C6 plan submitted by the commissioner is the boundary line separating the properties of the contesting parties. Certified copy of the plan has been made a part of the decree. It is noteworthy that the prayer for injunction was declined by the trial court. Court below dismissed the execution petition on the sole reason that the defendants cannot seek execution of a decree for fixation of boundary as they cannot be termed either as "decree holders" or "holders of the decree". I shall deal with the correctness of this logic in the succeeding paragraphs. True, the defendants cannot seek execution of one part of the decree, viz., the relief of declaration granted to the plaintiffs, for two reasons. Insofar as the declaratory relief is concerned, the defendants cannot be held to be the "decree holders" as defined in Section 2(3) of the Code of Civil Procedure, 1908 (in short, "CPC"). In Section 2(3) of the CPC, the term "decree holder" has been defined as "any person in whose favour a decree has been passed or an order capable of execution has been made". Firstly, on a mere reading of the decree, it is clear that the relief of declaration granted is for the exclusive benefit of the plaintiffs and, in fact, it is against the defendants. Logically, therefore, that part of the decree cannot be executed by the defendants as it may be an execution proceedings against themselves. Further reason to hold that a declaratory decree cannot be executed at the instance of the defendants is that such a decree is incapable of execution. Viewing from any angle, that part of the decree granting a declaratory relief is inexecutable, not only at the instance of the defendants, but also by the plaintiffs themselves. The definition of the term "judgment debtor" in Section 2(10) CPC is also relevant. "Judgment debtor" means any person against whom a decree has been passed or an order capable of execution has been made. So far as the declaratory decree is concerned, it is passed against the defendants, though it is incapable of execution. This is yet another reason to find that the decree of declaration is incapable of execution at the behest of the defendants.

(3.) The point germane for consideration is about the executability of the decree for demarcation of a common boundary separating the properties of the plaintiffs and defendants at the instance of the defendants. I am unable to agree with the view expressed by the court below that such a decree cannot be executed by the defendants for the following reasons. The court below failed to consider the marked difference in the expressions used by the CPC in Section 2(3) and Order XXI Rule 10. The term "decree holder" is defined in Section 2(3) CPC. The expression used is "holder of a decree" in Order XXI Rule 10 CPC. At first blush, it may appear to be synonymous. But, according to me, there is a legal distinction between these two expressions. The expression "holder of a decree" occurring in Order XXI Rule 10 CPC takes in a transferee of a decree and a legal representative of the decree holder also. Order XXI Rule 16 CPC deals with an application for execution by transferee of a decree. Such a person also comes within the expression "holder of a decree". In this context, I may refer to a decision of the Supreme Court in Dhani Ram v. Sri Ram, 1980 AIR(SC) 157 Answering a question as to whether the property in a decree passes as intended in the deed of assignment, without the recognition of transfer by the court as a precondition, the Supreme Court held that the property in a decree must pass to the transferee under a deed of assignment when the parties to the deed intend such property to pass and it does not depend on the court's recognition of the transfer. It goes without saying that such a transferee is also entitled to execute the decree. Therefore, the expression "holder of a decree" in Order XXI Rule 10 CPC takes in parties other than whose name appear on the decree. Likewise, a legal representative of the decree holder, though his name may not be inscribed in the decree, can execute it as provided in the CPC. The term "decree holder" defined in Section 2(3) CPC takes in persons whose names appear on the record as the persons in whose favour the decree was made. It includes persons who have been recognized by the court by order as the decree holder from the original plaintiff or his representative (see Paupayya v. Narasannah, ILR 2 Madras 216).