PONNAIYAN ALIAS PERIYA GOUNDER Vs. RANGASAMY GOUNDER

JUDGEMENT

(1.) THE judgment-debtor is the petitioner herein. He objected to the execution of the decree on the ground that the relevant particulars are not given in the decree and as such, the decree is inexecutable. Clause 1 of the decree reads that the plaintiff is entitled to bale out water from the common well "W" to his portion marked as "X" by rotation through the channel marked as C,C-1, C-2, C-3, C-4 in the rough plan. Clause 3 of the decree provides that the defendant shall restore the channel C'C-1, C-2, C-3, C-4 to its old position and a mandatory injunction is given to that effect. Clause 6 of the decree says that the rough plan attached to the plaint and the plan of the Commissioner marked as Ex.C-4 are attached to the decree as part thereof. It is the contention of the petitioner that the decree does not give measurements of the channel or the location of the channel. THE particulars contained in the decree are not sufficient to locate the channel and therefore, the decree cannot be executed.

(2.) THE executing court overruled the objections and directed the Commissioner to resotre the channel with the inside measurement of one foot and with ridge of one foot on both sides as per the plan. It is the contention of learned counsel that so long as the decree does not give any indication as to the location of the channel, the executing court cannot give a direction to restore the channel. Reliance is placed on the decision in P. Venkata Kasi Viswanadham v. Vallabha Vyas,A.l.R. 1983 A.P. 64: (1982)2 An. W.R. 332: (1982)2 A.P.L.J. 36: (1982)1 An.L.T. 27. THE decree in that case reads: "In the result, the judgment and decree of the lower court are set aside holding the plaintiff is entitled to a mandatory injunction with regard to the removal of the extended balcony and the pillars constructed by the defendant adjoining the windows of the plaintiff in the ground floor and for a permanent injunction restraining the defendant from interferring with the light and air that were being enjoyed by the plaintiff." THE learned Judge held that the decree was a declaratory decree simpliciter and though the decree also said that the plaintiff was entitled to mandatory injunction, it did not contain a positive direction along with the declaration of the right for the implementation of the said order of injunction prescribing the course of action. In that view, the learned Judge held that the decree cannot be executed. THE above ruling cannot have any bearing in the present case. THE decree there was considered to be declaratory decree simpliciter. But in the present case, the decree is not one of declartion merely. But it is one which contains a mandatory injunction. It has been held by the Supreme Court in Bhavan Vaja v. SolankiHamuji, A.I.R. 1972S.C. 1371, that the executing court can construe a decree and in appropriate case it ought to take into consideration the pleadings as well as the proceedings leading upto the decree, in order to find out the meaning of the words employed in the decree. In the present case in the plaint, the plaintiff has given the measurements of the channel and also the location of the channel as one starting from the common well. THE necessary details are found in paragraphs 4, 5 and 8 of the plaint. A rough plan is also attached to the plaint. THE rough plan shows that the channel begins from the common well on the western side and proceeds west, then north, then east, then south and again east to the lands of the plaintiff. A commissioner was appointed to insepct the property and he has also inspected the property and filed a report and plan. THE plan is marked as Ex.C-4. THE executing court is, therefore, right in taking into account the details given in the plaint, a rough plan and the Commissioner's plan which are attached to the decree and issuing suitable directions, for implementing the decree. I do not find any error whatever in the order of the court below. Hence, the revision petition is dismissed.