HARIHAR PANDEY Vs. MANGALA PRASAD SINGH

JUDGEMENT

(1.) This execution second appeal has been filed at the instance of the judgment-debtor against an order dismissing his objections under S.47 C.P.C. whereby removal of certain construction raised by him in violation of the decree has been ordered. The appellant has raised several questions of law.

(2.) In order to appreciate appellant's submission the necessary facts need be grasped first. The parties own adjoining land with a passage running from west to east between their properties. When the defendant started raising construction over his land the plaintiff apprehended obstruction to his passage. Consequently the suit was filed. The plaintiff secured an interim injunction restraining any further construction activity. Within two months of this order the parties filed a compromise petition and in terms thereof a decree was passed making the compromise petition as part of the decree. This petition consists of three parts. Para 'Ka' is a sort of preamble to the dispute and the properties are described therein with reference to the Commissioner's map. Its contents are not relevant for our present purposes. According to para 'Kha' the defendant, in lieu of the existing passage, offered an alternative passage to the plaintiffs running south-north towards West of defendant's Dalan, then turning towards East, near the North-Eastern corner of the Dalan having a regular width of 8' throughout. Defendant also agreed to remove bamboo clumps standing towards the West of his Dalan and to level up the passage. The defendant further undertook not to cause any obstruction in its use even in future. A period of two months was fixed for doing all this failing which the plaintiff could enforce it by executing the decree. The last clause 'Ga' empowered the plaintiff to revert to their old 8' wide passage if the alternative Rasta was not provided for any reason whatsoever.

(3.) After nearly ten years of this decree the plaintiff applied for enforcing the decree by (i) attachment of the offending constructions, (ii) for removal of bamboo clumps, (iii) for detention of the defendant in civil prison and for providing the alternative passage after removal of Ghoor and Nand raised at the eastern and southern ends which obstructed the passage. In this manner the decree-holder sought execution of the decree both in prohibitory and mandatory forms. The executability of the decree has been assailed on several grounds, which I propose to deal hereafter.