DIP PRAKASH Vs. DWARKA PRASAD

JUDGEMENT

(1.) This is an appeal by the judgment-debtors arising out of an execution matter. The plaintiffs, decree-holders, obtained a decree from the appellate Court on the 15 December 1920 ordering the defendants to remove the walls and sheds which they had constructed on the disputed land, and for an injunction not to erect any building on the land. The claim of the plaintiff's for other reliefs like joint possession was dismissed. On 30 April 1923 the decree-holders put in an application for execution of the said decree complaining that the defendants in spite of the aforesaid injunction had constructed a pucca pavement and several walls and had put a tin shed on the latter. In this application they expressly asked to execute the decree by demolition of the walls, the tin shed and the newly constructed pavement. Upon this, notice was issued to the judgment-debtors fixing the 30 of July 1923. On this last mentioned date the judgment-debtors appeared and put in a written objection that the decree was not executable on the ground that the parties had compromised their dispute and the construction had been made in pursuance of that compromise. In the objection there was no suggestion that any of the constructions complained of were not in defiance of the injunction. On the 18 of August 1923 the execution Court after hearing the evidence of the parties held that no compromise had been proved and accordingly dismissed the objection. No further objections were filed by the judgment-debtors, and on the 27 of August 1923 the Court ordered that inasmuch as the judgment-debtors objections had been dismissed, process should be issued to the amin to carry out the order of execution and report. Before however the order could be fully carried out, an order staying further proceedings was passed on the 29 of August 1923 because a declaratory suit was instituted by the sons of the judgment-debtors. The last mentioned suit was dismissed on the 17 of December 1923. On the 18 of December 1923 on receipt of a report that the civil suit had been dismissed, the Court ordered that the previous order dated the 27 of August 1923 should be carried out and the papers be sent to the amin for compliance. In obedience to this order the amin got the walls, the tin shed and the pavement removed from the land.

(2.) After this the judgment debtors filed a set of objections complaining that the decree-holders had fraudulently and without any right got the pavement removed causing a loss of Rs. 5,100 to them. They therefore prayed that the decree-holders might be ordered to get the pavement which they had got demolished rebuilt or to pay Rs. 5,100 on account of the cost of its construction to the objectors. The decree-holders replied that the construction of the pavement was contrary to the terms of the decree and further that the objectors had no right to raise this objection which was barred by the principle of res judicata and estoppel. They also disputed the amount of the alleged loss.

(3.) The execution Court held that there was no bar of res judicata. It further held that the pavement was not a building within the meaning of the decree and that therefore the decree-holders had no right to get it removed. It accordingly ordered that the decree-holders should rebuild the pavement within four months otherwise they would be liable to pay Rs. 3,490-5-4 to the objectors. On appeal the learned Additional Subordinate Judge agreed with the first Court that the objection was neither barred by res judicata nor by estoppel. He however held that the brick pavement of the floor was a building within the meaning of the term used in the decree. He accordingly allowed the appeal and dismissed the objection.