O R D E R

Challenging the impugned order passed in E.A.No. 284 of 2017 in E.P. No. 2723 of 2013 in O.S.No.4605 of 2007, on the file of learned IX Asst. Judge, City Civil Court Chennai, the Revision Petitioners herein have preferred this Civil Revision Petition.

2. The Revision Petitioner herein is the 1st Judgment debtor/defendant in the suit in O.S.No.4605 of 2007 on the file of City Civil Court, Chennai filed by the 1st respondent herein/plaintiff seeking the relief of mandatory injunction directing the defendants to remove the illegal construction obstructing air, light and ventilation of the plaintiff's property and also praying for a relief of mandatory direction to repair damaged portion of suit property. In the suit, the defendants were remain exparte and an exparte decree was passed in favour of plaintiff on 24.03.2010 and to execute the same, he preferred the above E.P.No. 2723 of 2014. On receipt of notice in the Execution Petition, the 1st defendant filed an Execution Application under Sec. 47 of C.P.C. praying to declare the decree dated 24.03.2010 passed in favour of plaintiff in the above suit in O.S.No. 4605 of 2007 is inexecutable in as such as the same is bereft of declaratory relief, which is conditional precedent for the relief of mandatory injunction. Apart from that, the said decree was passed without any jurisdiction. Hence, he prayed to dismiss the Execution Petition.

3. That application was strongly objected by the plaintiffs/decree holders stating that the Revision Petitioner has not challenged the exparte decree before filing the appeal. So, as on date, the decree becomes final and instead of filing a petition to set aside the exparte decree before the trial court, he preferred an application under Sec.47 of C.P.C. before the Executing Court as such is not maintainable. Further, the defence what are all to be raised before the trial court is submitted before the Executing Court by filing the said application, as such is not valid and prayed to dismiss the same.

4. Considering both side submissions, the trial court held that the Executing Court cannot go behind the decree as there is no materials placed by the Revision Petitioner to support his contentions and the reasons stated in the application is beyond the scope of Sec.47 of C.P.C. Challenging the said findings, the Revision Petitioner/1st judgment debtor preferred this Civil Revision Petition.

5. The learned counsel for Revision Petitioner argues that without a declaratory relief, the plaintiffs obtained a decree, as such is inexecutable and without a specific declaratory finding in the decree, the mandatory injunction cannot be executed by the Executing Court, but without appreciating this legal aspect, the Executing Court dismissed the application, as such is erroneous one and the same is liable to be set aside. Furthermore, as per the averments in the plaint, the alleged illegal construction put up by the 1st defendant is governed by Tamil Nadu Town and Planning Act, 1971 and as per Sec.101 of the Act, there is a statutory bar and embargo on the part of decree holder by filing the suit before the Civil Court, since because removing of alleged unauthorised construction is beyond the scope of civil jurisdiction. Furthermore, the Revision Petitioner completed the construction and after due inspection, the authorities concerned issued property and water tax and the building permission was also granted by the 2nd defendant. Therefore, the lower court grossly erred in dismissing the above Execution Application and prayed to set aside the findings of Executing Court.

6. By way of reply, the learned counsel for 1st respondent/plaintiff submitted that the 1st defendant put up the construction illegally on the western side of the suit property, thereby air, light and ventilation was prevented. The learned counsel would also submit that by putting up toilet on the south western side of plaintiff's property and also chipping the plaintiff's wall, which would