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2013 Supreme(Mad) 2517
High Court of Judicature at Madras
M. SATHYANARAYANAN, J.
Kandhathal
Versus
Muthammal & Others
Civil Revision Petition No. 2676 of 2007 & M.P.No. 1 of 2007
Decided On : 19-07-2013
Advocate Appeared:
For the Petitioner:K. Kalyanasundaram, Advocate.
For the Respondents:MA. P. Thangavel, Advocate.
The main legal point established was that the effect of a decree for mandatory injunction may entitle the plaintiff to possession, even without a specific prayer for possession in the decree.
Headnote:
Mandatory Injunction - Execution of Decree - 151 of C.P.C. - 1991 (1) LW 371, 2000 (II) CTC 136, 2007 (3) CTC 529 - The court discussed the legal provisions related to the execution of a decree for mandatory injunction and the entitlement to possession. The court's decision was influenced by the interpretation of the decree and the effect of the mandatory injunction obtained by the plaintiff.
Fact of the Case:
The plaintiff sought mandatory injunction against the defendants to dismantle obstructing walls and restore the pathway. The suit was decreed, but the defendants obstructed execution of the decree. The lower court ordered amendment of the execution petition, leading to the revision.
Finding of the Court:
The court found that the effect of the decree for mandatory injunction meant the plaintiff was entitled to possession of the pathway. The lower court's reasoning for deleting the possession prayer was not accepted.
Issues: The main issue was whether the plaintiff was entitled to possession based on the decree for mandatory injunction.
Ratio Decidendi: The court held that the effect of the decree for restoration of the pathway meant the plaintiff was entitled to use the same, in line with legal precedents.
Final Decision: The Civil revision petition was allowed, setting aside the lower court's order and affirming the plaintiff's entitlement to execute the possession prayer.
The revision petitioner is the plaintiff in O.S.No. 2394 of 2000 on the file of the Court of I Additional District Munsif, Coimbatore, and it was filed for the following relief:
(a) by granting mandatory injunction against the Defendants No.1 to 5 directing them to dismantle the East-West “KL” and North-South “KL” Wall constructed over the encroached suit pathway marked as “JKLMJ” in the Rough Sketch and in default, the plaintiff is at liberty to remove the said obstructed walls in the suit pathway and restore the plaint “B” Schedule pathway to its original position.
(b) by granting permanent prohibitory injunction against the defendants No.1 to 5 restraining them and their men, agents, relatives, servants, hire lings, from in any way removing the underground pipeline of the plaintiff (e) by granting permanent restraining the Defendants from disturbing the peaceful possession and enjoyment of the suit property.
(c) by direction the defendants No.1 to 5 to pay the costs of the suit to the plaintiff. and
(d) by granting such other and further reliefs as this Honourable Court may deem fit and proper in the circumstances of the above case and render justice.”
2. The suit, after contest, was decreed on 17.02.2003. The defendants, aggrieved by the said judgment and decree preferred an appeal in A.S.No. 24 of 2004 on the file of the Court of Principal District Judge, Coimbatore and it was also dismissed on 28.04.2004. Thereafter, the plaintiff/decree holder levied execution in E.P.No. 344 of 2003 praying for the execution of the decree for mandatory injunction and also prayed for handing over possession of the portion after removal of the offending construction.
3. In the Execution Petition, an Advocate Commissioner was appointed and after visiting the property, he filed his report wherein he has stated that he has removed the obstructions upto 22 feet length 2½ feet height in the east-west on the south and on the north-south on the east and west 6.6 feet each side. The Commissioner has further stated that he has also removed the offending construction i.e., stones and woods and when he tried to take delivery and hand over the petition mentioned property, judgment debtors, all of a sudden obstructed taking delivery and handing over of the property and once again, dumped the removed articles in the same place. Thereafter, the judgment debtors filed E.A.No. 387 of 2005 under Section 151 of C.P.C. stating that in the suit, there is no specific prayer for recovery of possession and therefore, prayer made in the execution petition with regard to the handing over of possession of the property, cannot be granted. The respondent therein/decree holder filed their counter affidavit stating that even as per the Advocate Commissioner’s report, the Commissioner had removed the offending obstructions but once again, the removed articles have been put back in the same place by the judgment debtors. Once a decree for mandatory injunction was executed, the plaintiff/decree holder should be made to put in possession. Therefore, the prayer made in the execution petition is sustainable.
4. The lower court, after taking into consideration the averments made in the petition as well as the counter statement held that in the decree passed in the suit, there is no specific prayer for delivery of possession and therefore, the prayer column in clause 10 of the execution petition needs to be amend and therefore, ordered amendment and directed the Advocate Commissioner to execute the warrant subject to the amendment made in clause 10 of the execution petition. The decree holder, challenging the vires of the said order dated 06.06.2006, has filed this revision.
5. Mr. C. Muthuselvam, learned counsel for the revision petitioner/decree holder would contend that the prayer bought for in the execution petition is in consonance with the decree passed by the trial Court for the reason that as per Clause A of the decree, a decree of mandatory against the d
