: Non-compliance with a valid decree can lead to execution orders.

Bakhshish Kaur, J.

1. Kashmiri Lal had filed a suit for permanent injunction that the defendants Lal Chand and others be directed to remove the construction made by them by way of constructing a room, thereby obstructing the parnala and a ventilator existing in the eastern wall of the house of the plaintiff at point mark `X&Y depicted in the site plan attached with the plaint.

2. The suit was decreed by the learned Sub-Judge Ganaur on October 25, 1990 whereby the defendants were directed to make provision for the opening of ventilator existing in the eastern wall of the house of the plaintiff.

3. The decree-holder for the execution of the decree had filed execution application. The judgment-debtor filed objection to the report of the Local Commissioner, which was dismissed by the learned Civil Judge (Senior Division) Phillaur vide order dated February 16, 2000. Civil Revision No. 1509 of 2000 preferred against that order was dismissed by this Court on April 24, 2000 vide Annexure P-5.

4. The learned executing Court, as per order dated February 02, 2001 directed the Local Commissioner to remove/demolish the construction of the judgment- debtor to make provision for opening of the ventilator existing at the eastern wall of the house so as to secure the execution of the decree in real terms. It is this order which has been assailed by the petitioner-judgment debtor in this revision petition.

5. I have heared Shri Sumeet Mahajan, learned counsel for the petitioners and Shri R.C. Dogra, learned counsel for the respondent.

6. The sole grievance of the petitioner is that with the falling of the roof of the dominant heritage, the easement right cease to exist in favour of the plaintiff, thus the case is covered under Sections 41 and 42 of the Easement Act, 1882.

7. Shri Sumeet Mahajan, learned counsel for the petitioner further elaborating his argument on the point of dominant heritage, contended that both the courts observed that roof of the room of the dominant heritage has fallen down, therefore, considering this fact as is evident from the photographs placed on record, the executing Court cannot go ahead with the decree by issuing directions to the Local Commissioner to remove and demolish the construction of the judgment debtor for the purpose of making provision for opening up the ventilator existing at the eastern wall of the house of the plaintiff. In the decree sheet, there is no such direction given to the defendant (now petitioner) to remove the construction, therefore, the impugned order is illegal and it being beyond the scope of the decree, requires to be set aside. Thus, the execution application has become infructuous.

8. It is a sad state of affairs that execution of a valid decree having been passed on the basis of the principle enunciated under the Easement Act is sought to be circumvented by the judgment debtor by way of constructing a room, which obstructs the ventilator opening on the eastern wall of the house of the decree holder, which had been existing there for a long time. The Local Commissioner had submitted his report Annexure P-2 on May 14, 1997. He has specifically reported that the ventilator in dispute mark `X&Y shown in blue colour in the site plan has been obstructed by raising two rooms on the eastern side of the ventilator by the judgment debtor. He has further reported that no air, light can pass through the ventilator due to this construction. Thus, Shri N.K. Banta, Advocate was again appointed as Local Commissioner as per order dated February 16, 2000 and that order was again challenged by the judgment debtor vide Civil Revision No. 1509 of 2000 which was dismissed vide order Annexure P-5 on 24.4.2000.

9. On the contrary, Shri R.C. Dogra, learned counsel for the respondent contended that easement gets extinguished when either the dominant heritage or the subservient heritage is completely destroyed. This having not taken place in the case in hand, the revision is liable to be dismissed.