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2019 Supreme(Mad) 2978
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.Hemalatha, J.
Y.Antony - Petitioner
Versus
K.Jagadeesan and ors. – Respondents
CRP (PD) No.3903 of 2011
Decided On : 25-07-2019
Advocate Appeared:
For the Petitioner: Mr. R. Ramanlaal
For the Respondent: Mr. S. Kanmani Annamalai, Mr. S. Arunkumar
Headnote:
Code of Civil Procedure – Section 151 – Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the orders – Civil revision petitioner is the decree holder in E.P. in O.S. on the file of the X Assistant Judge, City Civil Court, Chennai. He filed the suit in O.S. before the XVII Assistant Judge, City Civil Court, Chennai for a permanent injunction restraining the respondents herein from interfering with his peaceful possession and enjoyment of the suit property situate in S. of Kolathur Village, Perambur, Purasaivakkam Taluk measuring - suit was decreed in favour of the revision petitioner by the XVII Assistant Judge, City Civil Court, Chennai vide his decree and judgment – Subsequently, the revision petitioner filed E.P in SR before the X Assistant Judge, City Civil Court, Chennai under Order XXI Rule 35 read with Section 151 of the Code of Civil Procedure for recovery of possession of the suit property from the respondent herein –Held, When Court declares that the plaintiff is entitled to make use of the cart track, various rights flow form that. It recognises plaintiffs right to make use of the same and also recognises that plaintiffs can use the same without any obstruction from any source and when defendants cause obstruction, prohibitory injunction is also given directing them not to disturb the right of plaintiffs in making use of the same. If that is the effect of the decree, can it be said that plaintiffs while asking for issue of commission to remove obstruction are not entitled to apply for the same since there is no mandatory direction against defendants – Court do not think that the interpretation given by learned counsel for petitioners is correct – Plaintiffs are only making use of the cart track as they were using and are entitled to use it without any obstruction – It is that part of the decree they are enforcing against the defendants. Along with the same, there is also a decree for injunction – When both these reliefs are granted to plaintiffs, argument of learned counsel for petitioners that so long as there is no mandatory injunction against defendants, application under Rule 32(5) is not maintainable cannot be accepted – Civil revision petition is allowed.
ORDER :
(PRAYER: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the orders dated 18.12.2009 passed in E.P.No.192 of 2009 in O.S.No.3671 of 2003 by the X Assistant Judge, City Civil Court, Chennai.)
The civil revision petitioner is the decree holder in E.P.No.192/2009 in O.S.No.3671/2003 on the file of the X Assistant Judge, City Civil Court, Chennai. He filed the suit in O.S.No.3671/2003 before the XVII Assistant Judge, City Civil Court, Chennai for a permanent injunction restraining the respondents herein from interfering with his peaceful possession and enjoyment of the suit property situate in S.No.19/3 of Kolathur Village, Perambur, Purasaivakkam Taluk measuring 200 sq.ft. The suit was decreed in favour of the revision petitioner by the XVII Assistant Judge, City Civil Court, Chennai vide his decree and judgment dated 27.03.2006. Subsequently, the revision petitioner filed E.P in SR 36724 of 2018 in O.S.No.3671 of 2003 before the X Assistant Judge, City Civil Court, Chennai under Order XXI Rule 35 read with Section 151 of the Code of Civil Procedure for recovery of possession of the suit property from the respondent herein.
2. The learned X Assistant Judge, City Civil Court, Chennai, rejected the execution petition on the following grounds.
(i) Order XXI Rule 35(2) of the Code of Civil Procedure provides for removal of obstruction made by a person and since the petitioner who had obtained only an order of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property, cannot file execution petition for recovery of possession under Order XXI Rule 35(2) of the Code of Civil Procedure.
(ii) The decree holder has not filed a contempt application as against the judgment debtor for violation of the order of the court.
(iii) The decree holder has also failed to prove that the judgment debtor trespassed into the suit after obtaining the decree in O.S.No.3671 of 2003.
3. Aggrieved over the Order passed by the X Assistant Judge, City Civil Court, Chennai, the civil revision petitioner filed a civil revision petition in CRP(NPD) 4245 of 2008 before this court. This court in its order dated 22.12.2008, allowed the civil revision petition and directed the X Assistant Judge, City Civil Court, Chennai to take the EP SR36724 of 2008 on its file and number the application. Subsequently, the petition was taken on file and numbered as EP No.192 of 2009 and the respondents filed their counter. After full contest, the X Assistant Judge, City Civil Court, Chennai vide his fair and decreetal order dated 18.12.2009, dismissed the E.P.No.192 of 2009 on the following grounds
(i) Since the decree holder did not explain as to when and how he was dispossessed from the petition mentioned property, he cannot maintain an execution petition under Order XXI Rule 32 read with Section 151 of the Code of Civil Procedure.
(ii) Since the decree passed in O.S.No.3671 of 2003 dated 27.03.2006 is for a permanent injunction restraining the judgment debtor from interfering with the peaceful possession and enjoyment of the decree holder in the suit property, the decree holder cannot file a petition for recovery of possession. Aggrieved over the same, the present civil revision petition is filed.
4. Mr.R.Ramanlaal, learned counsel appearing for the civil revision petitioner contended that though an order of permanent injunction was granted in favour of the revision petitioner in O.S.No.3671 of 2003 on 27.03.2006, the respondents trespassed into the suit property subsequently and therefore, he approached the executing court for removal of obstructions. He also contended that the civil revision petitioner sent a complaint to the Inspector of Police, V4 Rajamangalam Police Station, Kolathur on 20.01.2007, against the respondent herein and in that complaint, it is specifically stated that on 15.12.2006, when the revision petitioner was away from Chennai, the respondents along
