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2026 Supreme(SC) 711
SUPREME COURT OF INDIA
S.V.N. BHATTI, ATUL S. CHANDURKAR, JJ.
Rajat Kumar And Others – Appellants
Versus
S D Adarsh Jain Kanya Maha Vidyalaya Sadhaura And Others – Respondents
Civil Appeal Nos. 19552-19553 of 2017
Decided On : 19-06-2026
Important Points
Execution of decree – After reversal of decree, no direction can be passed based on such decree.
Act Referred
Headnote
Civil Procedure Code, 1908 – Order XXI Rule 1 – Execution of decree – Once decree for mandatory injunction for removal of encroachment passed in favour of plaintiff by Trial Court which was upheld by first Appellate Court, was set aside by High Court, there would be no occasion for Executing Court to proceed with execution proceedings since there would be no decree holding the field for being executed – In such a situation, directing Executing Court to assess value of wall in question would be requiring it to undertake an exercise not supported by any decree whatsoever – Without an available question of law for consideration and also by making out a new prayer, decrees passed in favour of original plaintiff have been set aside – Legal heirs of plaintiff have been required to accept monetary relief for which prayer was never made – Such course has resulted in miscarriage of justice – Judgment of High Court set aside. (Paras 5 and 6)
Facts of the case:
High Court by impugned judgment reversed the decree for mandatory injunction for removal of encroachment passed by the Trial Court which was upheld by the first Appellate Court. It, however, directed the Executing Court to assess the value of the offending wall put up by the defendants so as to compensate the plaintiff in terms of money.
Findings of Court:
Since appeals have not been adjudicated on merits, there is no option but to request High Court to re-consider both appeals in accordance with Section 100 of Code and decide the same on their own merits.
Result : Civil Appeals allowed.
Key Points: - The High Court reversed a decree for mandatory injunction and then directed the Executing Court to assess the value of the wall to compensate the plaintiff in monetary terms; the Supreme Court held that after reversal there would be no decree holding the field for execution, making such Direction not supported by any decree. (!) - There was no prayer in the original suit seeking damages or compensation; directing payment of monetary relief without such prayer is impermissible and could lead to miscarriage of justice. (!) - The Court emphasized that decrees in favor of the original plaintiff cannot be set aside and replaced with monetary compensation without proper prayer or consent; High Court’s approach was unsustainable. (!) (!) - The judgment directs that appeals not be adjudicated on merits and should be reconsidered in accordance with Section 100 of the Code, remanding for fresh consideration. (!) - The final order states the appeals are allowed in terms with no order as to costs, indicating restoration of the Trial Court/First Appellate Court decrees. (!)
What is the effect of reversing a decree for mandatory injunction on execution when no decree remains in force?
What are the limits on directing an Executing Court to assess monetary compensation where the original decree did not seek such relief?
What are the proper considerations for remanding or reconsidering appeals under Section 100 of the Code in light of prior decrees and lack of prayers for compensation?
Legal Category Hierarchy
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property law
-
encroachment
- removal of encroachment
- common wall
-
encroachment
-
practice and procedure
-
appeal
-
second appeal
- substantial question of law
- remand
- reversal of decree
- regular appeal
-
second appeal
-
decree
- mandatory injunction
- permanent injunction
- execution of decree
-
civil procedure code
- order xxi
- section 100
-
appeal
-
tort
-
nuisance
- obstruction of air and light
- obstruction of water flow
-
nuisance
For the Appellant(s) : Ms. Sangeeta Kumar, AOR Ms. Vidushi Garg, Adv.
JUDGMENT
ATUL S. CHANDURKAR, J
1. The appellants are the legal heirs of the original plaintiff-Om Parkash. The original plaintiff filed Civil Suit No.426 of 1996 against the respondents-original defendants seeking mandatory injunction for removal of alleged illegal encroachment in the form of a wall constructed by them on the common open space beyond the plaintiff’s house. He further sought permanent injunction seeking to restrain the defendants from raising any further construction thereon. The Trial Court on 06.02.2006 decreed the suit and directed the defendants to remove the encroachment committed by raising the said walls. It also restrained them from raising any further construction over the said walls.
Regular Civil Appeal No.137 of 2006 preferred by the defendants was dismissed on 05.09.2007 and the decree passed by the Trial Court was upheld.
The defendants being aggrieved preferred Regular Second Appeal No.364 of 2008 before the Punjab and Haryana High Court [For short, ‘the High Court’]. By the judgment dated 25.11.2011, the High Court disposed the Second Appeal with a direction to the defendants to pay an amount of Rs.10,000/- with interest @ 12% per annum being half the amount of expenditure incurred on construction of the walls in question. It further held that on making such payment, the wall would be treated as ‘common’ between the parties. The legal heirs of the plaintiff challenged the reversal of the decree before this Court, reference to which would be made a bit later.
2. The original plaintiff also filed another Civil Suit being CS No.148 of 2000 against the same defendants, this time with a prayer for mandatory injunction for removal of lintel of the school building that had been erected by the defendants on the wall of the plaintiff’s house. The Trial Court by its judgment dated 08.11.2004 decreed the said suit and directed the defendants to remove the lintel of the school building from the said wall. The defendants were also restrained from putting any lintel on any wall of the plaintiff’s house.
Being aggrieved, the plaintiff preferred Regular Civil Appeal No.143 of 2004 which came to be dismissed by the first Appellate Court on 05.09.2007. Being aggrieved, the defendants preferred Regular Second Appeal No.363 of 2008 before the High Court. The Second Appeal was decided on 25.11.2011 and a similar decree directing the defendants to pay an amount of Rs.7,000/- being half of the amount spent on construction of the wall with interest @ 12% per annum was passed. It was further directed that on making such payment, the wall would be treated as ‘common’ between the parties.
3. The legal heirs of the original plaintiff being aggrieved by the reversal of the aforesaid decrees by the High Court filed appeals before this Court. By order dated 13.09.2013 passed in Civil Appeal Nos.8203 of 2013 and 8281 of 2013, it was held that the modification of the decrees by the High Court without entering into the merits of the controversy was impermissible. No substantial questions of law had been framed while deciding the Second Appeals. On these counts, the judgments delivered in the Second Appeals by the High Court were set aside and the proceedings were remanded for fresh consideration in accordance with law.
4. On remand, the High Court was of the view that the construction of the wall had been raised long back. There was no valuation report on record and the claim alleged to be put forth by the plaintiff had not been proved. By observing that the other party could be compensated in terms of money that could be assessed by a valuer and with a view to do justice between the parties, it directed the Executing Court to assess the value of the construction. The defendants were accordingly directed to deposit such amount in the Executing Court to be paid to the legal heirs of the plaintiff. With these directions, the decree passed by the Trial Court as affirmed by the first Appellate Court came to be set aside.
The legal heirs of t
