Rule.

Heard finally with consent of learned counsel for the parties.

The petitioner is the defendant in the suit filed by the respondent-plaintiff for a declaration that the defendant had no right to discharge rain water on the land of the plaintiff along with a prayer for possession of area admeasuring 6.75 sq. mt. In that suit there was also a prayer for grant of mandatory injunction to remove the construction erected by the defendant on the plaintiff’s land. Said suit was decreed on 29-8-2009 by passing the following decree :

“(1) The Suit is partly decreed with costs.

(2) Defendant shall hand over the possession admeasuring 6.75 sq. mtr. of C.T.S. No. 308, situated at Bela which bounded as East : CTS No. 307, West : Part of CTS No. 308, North: Road on which encroachment of defendant and South: Part of CTS No. 308 to the plaintiff.

(3) Decree be drawn up accordingly.”

2. This decree attained finality with the dismissal of the appeal filed by the defendant. Said decree was thereafter sought to be executed. In the execution proceedings the decree-holder sought possession of 6.75 sq. mt. land. It was also prayed that the defendant’s construction be demolished and thereafter possession be handed over to the decree-holder. The judgment-debtor raised an objection to the aforesaid proceedings and by the impugned order dated 28-8-2017 those objections came to be turned down. The judgment-debtor was directed to demolish the existing structure and take away any valuable material thereon. It was further directed that if the judgment-debtor did not desire to take away that material, further orders would be passed. Being aggrieved the judgment-debtor has challenged the aforesaid order.

3. Shri M. A. Randive, learned counsel for the judgment-debtor submitted that in the suit the plaintiff had specifically prayed for a decree for mandatory injunction so as to direct the defendant to remove the construction standing on the suit property. This relief was not granted either by the trial Court or by the Appellate Court. The decree was for possession simpliciter. In the execution proceedings it was not open for the decree-holder to make a prayer for removal of that construction as it would amount to seeking relief which was not granted in the suit. It was therefore submitted that the executing Court committed a jurisdictional error in directing the judgment-debtor to demolish the existing structure.

4. Shri P. A. Markandeywar, learned counsel for the decree-holder supported the impugned order. By referring to the provisions of Order XXI, Rule 23(1) of the Code of Civil Procedure, 1908 (for short, the Code) he submitted that after the decree was passed by the trial Court in the year 2009, that decree was sought to be executed and notice under provisions of Order XXI, Rule 22(1) of the Code was issued to the judgment-debtor. Despite service of this notice, the judgment-debtor did not raise any objection to the reliefs sought in the execution proceedings. By failing to raise any objection in that regard, the judgment-debtor was now precluded from raising such objection as the same were barred by the principles of constructive res judicata. In that regard learned counsel relied upon the judgment of the Division Bench in Laxman Bala Surve and ors. vs. M/s Posh Builders, Bombay and anr. 1996(2) Mh.L.J. 858 and judgment of the Honourable Supreme Court in Barkat Ali and anr. vs. Badrinarain (Dead) by LRs. (2008) 4 SCC 615. He then referred to the provisions of section 52 of the Transfer of Property Act, 1882 and submitted that as the judgment-debtor had raised construction wrongfully and he was required to hand over possession of the land on which construction had been made, the direction for removing the construction as an incidental order could always be issued. For said purpose he referred to the provisions of Order XXII, Rule 35(3) of the Code. He also placed reliance on the decisions in B. Gangadhar vs. B. G. Rajalingam, AIR 1996 SC 780, Mohd.