VISHWANATH Vs. SAMPAT KUMAR AND ORS.

JUDGEMENT

(1.) IN the instant writ application, the petitioner/defendant seeks to challenge the legality, validity and correctness of the orders dated 28th May, 2011 and 27 August, 2011 passed by the learned Court below in execution proceedings.

(2.) BRIEFLY , the essential material facts necessary for adjudication of the controversy raised are : That the plaintiff/respondent filed a suit for mandatory and permanent injunction as well as recovery of possession of the land as a consequence of partition of the ancestral properties on 4th April, 1970. The respondent/plaintiff also prayed for permanent injunction restraining the petitioner/defendant from raising any obstruction to the windows of the shop opening in the Eastern side. The petitioner/defendant filed the written statement and denied all the averments made in the plaint. The learned Trial Court dismissed the suit vide order dated 19th January, 1996. However, vide order dated 17th January, 2002; the learned first Appellate Court partly allowed the appeal decreeing the suit of the respondent/plaintiff with a declaration to the effect that common wall measuring 20 feet in length and 1 feet 10 inches in width; as joint property of the respondent/plaintiff and the petitioner/defendant and therefore, they were entitled to enjoy the property to the extent of one and half of the width of the wall. Permanent injunction was also granted with respect to the windows of the shop opening on the Eastern side in favour of the petitioner/defendant. The petitioner/defendant unsuccessfully challenged the judgment and decree passed by the first Appellate Court in S.B. Civil Second Appeal Number 105 of 2003, which was dismissed vide order dated 1st August, 2007. During the course of execution proceedings, on an application moved under Section 151 of the Civil Procedure Code (for short, 'CPC'), on behalf of the respondent/plaintiff, the learned Executing Court passed the impugned order dated 28th May, 2011 to remove the stair -case constructed by the petitioner/defendant after filing of the suit. The petitioner/defendant/judgment -debtor filed an application under Order 21 Rule 35 read with Section 151 CPC for measurement and identification of the property for which decree was passed and questioned the execution proceedings on the ground of want of identification of the property in dispute. The Executing Court vide order dated 27th August, 2011 declined the application taking note of the contents of the application and the order dated 28th May, 2011 as well as the response to the application on behalf of the respondent/plaintiff/decree -holder, wherein it was specifically pointed out that the petitioner/defendant made encroachment by demolishing the wall measuring 20 feet in length and 1 feet and 10 inches in width.

(3.) PER contra, the learned Senior Counsel, Mr. M.M. Ranjan, appearing on behalf of the respondent/plaintiff/decree -holder supporting the impugned orders, argued that the petitioner/defendant made an attempt, with a view to obstruct to the execution proceedings, by putting up a construction pendente lite. Further, the Executing Court would be justified to order for removal of the unlawful or illegal construction raised pendente lite so that the decree for possession or eviction, as the case may be, is effectually and completely executed, as has been held by the Hon'ble Apex Court of the land in the case of B. Gangadhar v. B.G. Rajalingam : : AIR 1996 SC 780. Thus, the learned Executing Court committed no illegality or error apparent on the face of record in directing removal of the staircase, in order to restore possession to the decree -holder. Therefore, the said direction in execution of the decree is not without jurisdiction and hence, the impugned orders call for no interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.