When construction was made pendente lite Executing Court ought to have ordered removal of obstruction of superstructure.

This Revision Petition is directed against the Order of the Additional District Munsif, Mayiladuthurai in E.A.No.150/2002 in E.P.No.109/1991 in O.S.No.117/1986 allowing the Petition filed by the Respondent Judgment-Debtor, under Section 47 CPC.

2. A lane measuring 5 width x 80 length has been the subject matter of litigation between the parties for nearly two decades in atleast two rounds of litigation.

3. Brief facts of the case are as follows:-House and site of the Respondent is situated on the Western side of the Petitioner. The Petitioner has filed O.S.No.117/1986 for Permanent Injunction restraining the Respondent from interfering with his possession and enjoyment of the suit lane. Alleging that the Respondent had encroached upon the suit property, the plaint was amended for alternative relief of recovery of possession. The said suit was dismissed, as against which, the Petitioner has preferred A.S.No.52/1987 on the file of the Sub Court, Mayiladuthurai. The Appeal was allowed, declaring the Petitioners title and ordering delivery of possession. The second appeal S.A.No.1334/1990 preferred by the Respondent was dismissed by the High Court on 07.09.1990 even in the admission stage. Thereafter, the Petitioner has filed E.P.No.199/1990 for delivery of possession and the Amin returned the papers stating that there is a wall in the suit lane and the same is to be demolished.

4. When the matter stood thus, mother and brother of the Respondent have filed O.S.No.67/1991 on the file of Sub Court, Mayiladuthurai for partition and separate possession and also for Permanent Injunction and for declaration that the Decree passed in O.S.No.117/1986 is not binding on them and unenforceable. In the said partition suit, the suit lane was also shown as the property belonging to the family. Since Interim Injunction was granted in O.S.No.67/1991, the earlier Execution Petition filed by the Petitioner in E.P.No.199/1990 was closed as not pressed on 010. 1991.

5. O.S.No.61/1991 filed by mother and brother of the Petitioner was transferred to District Munsif Court, Mayiladuthurai and renumbered as O.S.No.73/1996. By the Judgment dated 31.07.2001, the Court has passed the Decree, however excluded the suit lane which is the subject matter of O.S.No.117/1986.

6. After dismissal of the suit O.S.No.73/1996, the Petitioner has again filed E.P.No.109/2001 in O.S.No.117/ 1986 for delivery of possession of the suit lane. In the Execution Petition, the Respondent filed E.A.No.150/2002 under Section 47 CPC contending that the Decree passed in O.S.No.117/1986 [A.S.No.56/1987] is not executable. That Petition filed under Section 47 CPC was allowed by the Executing Court finding that the Decree Holder ought to have amended the plaint for the relief of delivery of possession after removal of superstructure. Allowing of Petition filed under Section 47 CPC is challenged in this Revision Petition.

7. Drawing the attention of the Court to the two rounds of litigation, the learned Counsel for the Petitioner has submitted that rights of the parties are to be determined as on the date of suit. Submitting that the superstructure was not in existence on the date of filing of the suit and the Court has got power to remove the superstructure put up pendente lite, the learned Counsel has submitted that the Respondent Judgment-Debtor is trying to circumvent the execution of the Decree by one way or other and the Executing Court erred in saying that the Decree is inexecutable.

8. The learned Counsel for the Respondent has contended that the superstructure was already in existence and when there is no provision in the Decree for removal of superstructure, the Decree becomes inexecutable. It was further submitted that when there is no specific direction as to removal of the superstructure, the Decree cannot be executed.

9. I have carefully examined the records and considered the submissions of the learned Counsel on either side.

10. The subject matter of