Executing Court should always strive to execute decree.

These Civil Revision petitions have been filed under Sec.115 of C.P.C., against the orders dated 26.7.2004 and 30.1.2004 and made in E.P.No.166/2002 in O.S.No.453/1994 and in E.A.No.660/2003 in E.P.No.166/2002 in O.S.No.453/1994 respectively, on the file of the Principal District Munsif, Tirunelveli.

2. The plaintiff in O.S.No.453/1994 is the revision petitioner in both the Civil Revision Petitions.

3. The plaintiff filed O.S.No.453/1994 against the defendants for declaration, prohibitory injunction and also for mandatory injunction. The trial court by judgment and decree dated 14.7.2000, (1) declared that the 2nd item of the suit schedule property i.e., wall and the annexed Varukal belongs to the plaintiff; (2) granted a permanent injunction restraining the 1st defendant (the respondent in C.R.Ps.) from interfering with the 2nd item of the suit schedule property and (3) for a mandatory injunction directing the 1st defendant (the respondent in C.R.Ps.) to put up a Varukal which was already there within two months, failing which the same could be done through court. Against the judgment and decree dated 14.7.2000, an appeal was filed in A.S.No.172/2000 and the same was dismissed on 29.6.2001. Thereafter, E.P.No.166/2002 was filed by the decree holder to execute the decree, i.e., to put up the varukal which was not done by the 1st defendant (respondent herein) within two months as directed in the decree. The decree holder filed an application in E.A.No.660/2003 before the executing court, to pass an order directing the respondent herein to remove the construction made by him touching the petition schedule wall, failing which to carry out the same through the court. It is stated in the affidavit filed in support of E.A.No.660/2003 that pending suit, constructions were made touching the petition schedule wall and therefore the same is to be removed. The execution court by an order dated 30.1.2004 dismissed E.A.No.660/2003 on the ground that even though construction was put up pending suit, no relief was claimed by the decree holder in the main suit and in the absence of any decree granted for removing the construction put up during the pendency of the suit, construction could not be removed in the execution petition. Thereafter, E.P.No.166/2002 itself was taken up for disposal for directing the respondent to put up the varukal (waste water channel) and the execution court by order dated 26.7.2004 dismissed the execution petition itself as the same is inexecutable. This decision of the execution court is based on the report of the Ameen which reveals that there is a wall belonging to the respondent and without removing the said wall, waste water channel could not be formed. Therefore, after observing that E.A.No.660/2003 filed by the revision petitioner was already dismissed on 30.1.2004, which was filed for removing the very same wall, the execution court held that the decree is inexecutable. Aggrieved by the order dated 26.7.2004, C.R.P.No.912/2006 was filed by the revision petitioner on 18.11.2004. Thereafter C.R.P.No.1058/2006 was filed by the very same revision petitioner on 9.12.2004, challenging the order dated 30.1.2004 made in E.A.No.660/2003.

4. Heard the learned counsel for the petitioner and the learned counsel for the respondent. I have also gone through the documents filed and the judgments referred to by them in support of their submissions.

5. The learnedcounsel for the revision petitioner submitted that when the construction was made pendente lite, the executing court ought to have removed the same instead of dismissing the execution petition itself as inexecutable. He further contended that the execution court should not allow technicalities to come in the way of the decree holder from enjoying the fruits of the decree. The learned counsel has relied on the decision of this court reported in 2006(1) CTC 526 (Athisayaraj, D.V. v. Tirunelveli Diocese Trust Association) and 2007(1) CTC 217 (Madaswamy v