Dismissed

Kayji Real Estate Pvt. Ltd., Thr. Its Aut. Officer, Chandrakumar R. Huilgol., v. Vishwanath Raghuvir Caroikar @ Vishwanath Raghuvir Karekar and 3 Ors.

Bombay HC14 Jul 2021WP/716/2019

Case brief

AI extract

What is this about?

This writ petition challenged an order by the executing Court directing the removal of encroachments made during trial. The High Court dismissed the petition, ruling that despite the lack of an express 'mandatory injunction' in the decree, consequential orders under Order 21 Rule 35(3) CPC permitting the removal of obstructions made during the suit were valid.

What did the court decide?

The writ petition was dismissed and the executing Court was directed to dispose of execution proceedings expeditiously.

Kayji Real Estate Pvt. Ltd., Thr. Its Aut. Officer… — Execution and Attachment | Bombay HC (2021)

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1 WP716-2019

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 IN THE HIGH COURT OF BOMBAY AT GOA

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 WRIT PETITION NO.716 OF 2019

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Kayji Real Estate Pvt Ltd.

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…Petitioner

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Vs

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…
Vishwanath Raghuvir Caroikar & Ors. Respondents

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Mr. R. G. Ramani, Senior Advocate with Mr. P. Kakodkar, Advocate for
the Petitioner.

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Mr. Prasheen Lotlikar, Advocate for Respondent No.1.

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Coram: M. S. SONAK, J
Date: 14th July 2021

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Oral Order

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 Heard Mr. R. G. Ramani, learned Senior Advocate who
appears along with Mr. P. Kakodkar for the Petitioner – Judgment
Debtor No.1 and Mr. P. Lotlikar, learned counsel for Respondent No.1-
Decree Holder.

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2This petition challenges the order dated 19.07.2019 made
by the executing Court dismissing the Petitioner's application resisting
the execution of judgment and decree dated 30.11.2012 made by the
Civil Judge Junior Division at Margao.

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3The record indicates that by this judgment and decree the
Petitioners, the original defendants were permanently restrained from
interfering with the suit property which was described in the plan at

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2 WP716-2019

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Exhibit 63. Further, the learned Trial Judge directed the Inspector of
Settlement and Land Records to depute a surveyor ( Commissioner ) to
demarcate the suit plot at loco and identify the encroachments made
therein and submit a report.

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4The Petitioner appealed to the First Appellate Court vide
Regular Civil Appeal No. 10/2013/I. This appeal was dismissed by the
First Appellate Court but the First Appellate Court made the following
significant observations in paragraph 62 while setting aside the direction
for the appointment of Commissioner to identify the encroachment:

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"62. The learned trial Judge has also vide the impugned
judgment and decree ordered the appointment of a
Commissioner to demarcate the suit plot at loco and
identify the encroachment made therein. In fact Shri Laad
has on 10.12.2003 at exhibit 72 colly drawn a plan showing
the encroachment made. Since these encroachments are
already identified in the plan annexed to the report, the
question of appointing a commissioner again does not arise.
Plaintiff has not made any such prayer. The question of
granting such a relief does not arise. Demarcating the
encroachment at loco and removing it will be the question
of executing of the decree. Construction done if any, inspite
of the order of injunction will have to be removed. To the
extent of appointing a Commissioner to demarcate the suit
plot at loco, the impugned judgment cannot be sustained."

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5The Petitioner instituted a Second Appeal No.117 of 2015
before this Court but even the same was dismissed by order dated
07.07.2016.

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3 WP716-2019

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6Mr. Ramani, learned Senior Advocate for the Petitioner
submits that in this matter no decree of mandatory injunction to remove
the encroachments was granted and therefore, the executing Court,
cannot travel beyond the decree and make any orders for removal of the
encroachments. He relies on Rameshwar Dass Gupta vs State Of U.P
& Anr1 and V. Ramaswami Ayyangar And Others vs T.N.V. Kailasa
Thevar2to submit that the executing Court cannot travel beyond the
decree even under the guise of seeking to interpret the decree. He,
therefore, submits that the impugned order which directs the removal of
the encroachment is in excess of jurisdiction which is vested in the
executing Court, and therefore, must be interfered with.

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7Mr. Lotlikar defends the impugned order based on the
reasoning reflected therein. He submits that the decrees made by the
Courts have to be holistically construed. He submits that such holistic
construction makes it clear that the Judgment Debtor had to remove the
encroachment, particularly because there are concurrent findings that
these encroachments were made in the teeth of injunction orders made
during the pendency of the proceedings. He submits that the fruits of
the decree cannot be denied to the Decree Holder based upon such
objections as have now been raised to the execution of the decree. He
submits that this is not at all the case of executing Court traveling
beyond the decree but rather this is a case where the executing Court is

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1 1996(6) Supreme 640

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2 AIR 1951 SC 189

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4 WP716-2019

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giving full effect to the decrees as have been made. He relies on B.
Gangadhar Vs B.G. Rajalingam3 in support of his submissions. He
also relies on Delhi Development Authority Vs Skipper
Construction Co.(P) Ltd., and another4 to submit that no party
should be allowed to enjoy or retain the fruits of his own contempt of
lawful orders. He submits that this is a case where the Judgment Debtor
is obstructing and delaying the execution unduly and therefore, this
petition may be dismissed.

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8The rival contentions now fall for my determination.

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9The conjoint reading of the judgments and decrees made by
the Trial Court and the Appellate Court makes it clear that in this case
the encroachments made by the Judgment Debtor were required to be
removed. Merely because the expression “mandatory injunction” may
not have been so expressly employed, on the conjoint reading of both
the judgments and decrees, it is quite clear that such encroachments
were not to be tolerated.

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10The only reason perhaps why the expression “mandatory
injunction" does not find specific reference in the decree made by the
learned Trial Judge is because the learned Trial Judge was not too sure
about the precise dimension of the encroachment at loco and deemed it

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3 AIR 1996 SC 780

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4 (1996) 4 SCC 622

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appropriate to appoint a Commissioner to determine the same. In
appeal, however, the First Appellate Court set aside this direction by
observing that the report furnished by Mr. Laad dated 10.12.2003 at
Exhibit 72 Colly had indicated the nature and dimension of the
encroachment and therefore, there was no further necessity of
appointing Commissioner. The First Appellate Court, as noted earlier in
paragraph 62, very clearly directed that the construction done despite
the order of the injunction will have to be removed.

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11Mr. Lotlikar is also quite right in his submission that there
are concurrent findings that in this case that despite injunction orders
the encroachments were made. Such encroachments cannot now be
saved based on how the Judgment Debtor seeks to interpret the decrees.
Even if it is assumed that there is some ambiguity in the decrees the
Judgment Debtor cannot seek to protect the encroachments carried out
in the teeth of injunction orders during the pendency of the suit. This is
what is the effect of observations in Skipper Construction (supra) relied
upon by Mr. Lotlikar.

¶35

12Even the observations in paragraph 4 of B. Gangadhar
(supra) are relevant and to a certain extent support the contention of Mr.
Lotlikar. They are transcribed below for convenience:

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“Rule 35(3) of Order 21 CPC itself manifests that when a
decree for possession of immovable property was granted
and delivery of possession was directed to be done, the

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6 WP716-2019

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court executing the decree is entitled to pass such
incidental, ancillary or necessary orders for effective
enforcement of the decree for possession. That power also
includes the power to remove any obstruction or super-
structure made pendente lite. The exercise of incidental,
ancillary or inherent power is consequential to deliver
possession of the property in execution of the decree. No
doubt, the decree does not contain a mandatory injunction
for demolition. But when the decree for possession had
become final and the judgment-debtor or a person
interested or claiming right through the judgment-debtor
has taken law in his hands and made any constructions on
the property pending suit, the decree-holder is not bound
by any such construction. The relief of mandatory
injunction, therefore, is consequential to or necessary for
effectuation of the decree for possession. It is not necessary
to file a separate suit when the construction was made
pending suit without permission of the court. Otherwise,
the decree becomes in executable driving the plaintiff again
for another round of litigation which the code expressly
prohibits such multiplicity of proceedings.”

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13The decisions relied upon by Mr. Ramani, no doubt, lay
down the well-accepted proposition that the executing Court cannot
travel beyond the decree. Those were cases where it was established that
the executing Court was indeed traveling beyond the decrees which were
clear and specific. In one of the cases no interest was awarded in the
decree but the executing court had proceeded to award the same. In the
present case, as noted above, the decrees did contemplate the removal of
encroachments particularly since such encroachments were made in the
teeth of the injunction orders. There was material on record to indicate
the nature and extent of such encroachments. The Judgment Debtor

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7 WP716-2019

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cannot frustrate the execution of decrees, merely because the wordings of
the decrees may not be quite artistic or merely because there is no
express reference to the expression "mandatory injunction”. From the
context as well as from the conjoint reading of the judgments and
decrees made by both the Trial Court and the First Appellate Court, it is
very clear that the encroachments had to be removed.

¶42

14In Satyawati Vs Rajinder Singh and another5, the
Hon'ble Supreme Court held that once the decree was passed in favor of
a party, the executing Court should not look into other reports which
had been submitted to it afterward. Therefore, the learned executing
Court was quite right in referring to Exhibit 72 Colly i.e. report
furnished by Mr. Laad on 10.12.2003, which had clearly indicated the
nature of dimension of the encroachment.

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15. In Satyawati (supra), the Hon'ble Supreme Court expressed
agony that the Decree Holder was unable to enjoy the fruits of her
success even in the year 2013 when the decree was made in January
1996. The Hon'ble Supreme Court referred to the observations of the
Privy Council made in 1872 that the difficulties of a litigant in India
begin once he has obtained a Decree. The Hon'ble Supreme Court also
referred to another decision of the Privy Council made in the year 1925
to the same effect. Finally, the Hon'ble Supreme Court observed that
despite observations in 1925, once again in 1982, in Babu Lal vs. M/s.

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5 (2013) 9 SCC 491

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8 WP716-2019

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Hazari Lal Kishori Lal & Ors6, the Hon'ble Supreme Court was
constrained to observe that the procedure was meant to advance the
cause of justice and not to retard it. The difficulty of the Decree Holder
starts in getting possession in pursuance of the decree obtained by him.
The Judgment Debtor tries to thwart the execution by all possible
objections. Finally, the Hon'ble Supreme Court emphasized that there
should not be an unreasonable delay in execution of a decree because if
the Decree Holder is unable to enjoy the fruits of his success by getting
the decree executed, the entire effort of successful litigant would be in
vain.

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16.Recently, in Rahul S. Shah Vs Jinendra Kumar Gandhi
and others7, the Hon'ble Supreme Court in the context of delay in
execution of decrees has made the following observations which are quite
apposite in the present case.

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“23. This court has repeatedly observed that remedies
provided for preventing injustice are actually being misused
to cause injustice, by preventing a timely implementation of
orders and execution of decrees. This was discussed even in
the year 1872 by the Privy Counsel in The General Manager
of the Raja Durbhunga v. Maharaja Coomar Ramaput Sing
which observed that the actual difficulties of a litigant in
India begin when he has obtained a decree. This Court
made a similar observation in Shub Karan Bubna @ Shub
Karan Prasad Bubna v Sita Saran Bubna, wherein it
recommended that the Law Commission and the

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6 (1982) 1 SCC 525

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7 2021 SCC OnLine SC 341

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Parliament should bestow their attention to provisions that
enable frustrating successful execution. The Court opined
that the Law Commission or the Parliament must give effect
to appropriate recommendations to ensure such
amendments in the Code of Civil Procedure, 1908,
governing the adjudication of a suit, so as to ensure that the
process of adjudication of a suit be continuous from the
stage of initiation to the stage of securing relief after
execution proceedings. The execution proceedings which are
supposed to be handmaid of justice and sub-serve the cause
of justice are, in effect, becoming tools which are being
easily misused to obstruct justice.

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24. In respect of execution of a decree, Section 47 of CPC
contemplates adjudication of limited nature of issues
relating to execution i.e., discharge or satisfaction of the
decree and is aligned with the consequential provisions of
Order XXI. Section 47 is intended to prevent multiplicity of
suits. It simply lays down the procedure and the form
whereby the court reaches a decision. For the applicability of
the section, two essential requisites have to be kept in mind.
Firstly, the question must be the one arising between the
parties and secondly, the dispute relates to the execution,
discharge or satisfaction of the decree. Thus, the objective of
Section 47 is to prevent unwanted litigation and dispose of
all objections as expeditiously as possible.

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25.These provisions contemplate that for execution of
decrees, Executing Court must not go beyond the decree.
However, there is steady rise of proceedings akin to a re-trial
at the time of execution causing failure of realisation of
fruits of decree and relief which the party seeks from the
courts despite there being a decree in their favour.
Experience has shown that various objections are filed
before the Executing Court and the decree holder is
deprived of the fruits of the litigation and the judgment

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10 WP716-2019

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debtor, in abuse of process of law, is allowed to benefit from
the subject matter which he is otherwise not entitled to.”

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17.There is no jurisdictional error in the impugned order made
by the executing Court. For all the aforesaid reasons, this petition is
liable to be dismissed and is hereby dismissed. There shall however be no
order as to costs.

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18The learned executing Court is directed to dispose of the
execution proceedings expeditiously having regard to the observations
made by the Hon'ble Supreme Court in the above-referred cases.

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M. S. SONAK, J.

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at*

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Digitally signed by TARI AMRUT TARI AMRUT NAGESH NAGESH Date: 2021.07.16 11:46:25 +05'30'

Kayji Real Estate Pvt. Ltd., Thr. Its Aut. Officer, Chandrakumar R. Huilgol., v. Vishwanath Raghuvir Caroikar @ Vishwanath Raghuvir Karekar and 3 Ors.

Case brief

What is this about?

What did the court decide?

Kayji Real Estate Pvt. Ltd., Thr. Its Aut. Officer, Chandrakumar R. Huilgol., v. Vishwanath Raghuvir Caroikar @ Vishwanath Raghuvir Karekar and 3 Ors.

Case brief

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What did the court decide?

What the court decided

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