1. The revision petition which raises rather important points, arises under the following circumstances:-
2. The Execution petition No. 341/74 in O.S. No. 100/67 was filed for the execution of the decree in A.S. No. 94/69 allowing the appeal preferred against the dismissal of O.S. No. 199/67.
3. To the said E.P. objections were filed stating inter alia that the decree was inexecutable inasmuch as it was merely a declaratory decree. The objections were overruled and the E.P. was allowed. The appeal A. S. 135/76 preferred against that order was dismissed. Hence this revision.
4. Pending A. S. No. 135/76 the revision-petitioner - Judgment-debtor herein filed O.S. No. 285/78 challenging that the decree obtained in a. S. No. 94/69, as inexecutable and pending the O.S I.A No. 3058/79 was filed for injunction restraining the respondent-decree-holder herein from executing the decree; when rejected C.M.A was filed in this Court and therefore the C.R.P. as well as the C.M.A should be disposed of bya common order.
5. Before adjudicating upon whether the decree is inexecutable the circumstances in brief that led to this revision may be noticed. O.S. No. 199/67 was filed by the respondent-plaintiff herein for declaring that he is entitled to free air and light and the extended construction of the balcony by 3 feet on the first floor and also the pillars constructed on the ground floor thereby diminishing and affecting the right of the plaintiff to free air and light may be caused to be removed by issue of a mandatory injunction and further restraining the defendant from interfering with the right of the plaintiff to free air and light. The said suit was dismissed. As against that A. S. No. 94/69 was preferred which was allowed and the decree so passed in A. S. Was sought to be executed through E.P. No. 341/74. When it was allowed on being objected to A.S. No. 135/76 was preferred and when the said A.S. was dismissed, the petitioner-judgment-debtor herein preferred the revision.
6. The principal contention of Sri. S. Satyanarayana prasad the learned counsel for the petitioner is that the decree so passed is not executable since it is merely a declaratory decree as there was no consequential direction. The only alternative for the respondent-decree-holder herein is to file a suit and get the decree executed. The countercontentions aof Sri Syryanarayana Murthy the learned counself or the respondent are that the decree as it mandates congerring the right to have the decree executed by getting the obstructions caused. Removed even if there is any ambiguity in the decree so passed, reference could be had to the pleadings and the judgments passed thereon to comprehend what the decree contemplated.
7. The decree passed in A.S. No. 94/69 may now be read:
'In the result the judgment and decree of the lower Court are set aside holding the plaintiff is entitled to a mandatory injunction with regard to the removal of the extended balcony and the pillars constructed by the defendant adjoining the windows of the plaintiff in the ground floor and for a permanent injunction restaraining the defendant from interfering with the light and air that were being enjoyed by the plaintiff'.
The case law cited for and against in this behalf may be noticed. In Ramanuja Naicker v. Seethalakshmi Ammal, (1958) 2 Mad LJ 512 while dealing with the decree referred to the clause contained therein which reads as follows:-
'III (a) that the 8th defendant be and hereby is entitled to past mainentance due to her mother. 7th defendant for a period from 12 years prior to suit up to 27th November. 1950, the date of death of 7th defendant, at Rs. 100 per mensem:
(b) for the return of the sum of Rupees 500 given by her husband's family to that of plaintiff and defendants 1 to 3;
(c) to be reimbursed by plaintiff and defendants 1 to 3 the sum of Rs. 500 spent by her for the funeral of her mother (7th defendant)'.
This clause was followed by another clause which ran as follows:-
IV. That the payments of the amounts declared under para III (supra) be a charge on items 1, 13, 14,20 and 52 to 62 of the plaint A schedule'.
A division bench of the madras High Court held:
'The decree does declare that the eighth defendant is entitled to the past maintenance due to her mother and to other sums of money. But there is no direction that the plaintiff or any of the defendants or all of them do pay to the eighth defendant any amounts on or before a particular date. The further clause also declares a charge on certain items, but there is no specific provision that in default of payment of the amounts declared to be due to the eighth defendant, the charged items, or such of them as may be sufficient, to discharge the amounts due under the decree. Be sold; on the language of the decree we cannot but hold that the decree is not exeuctable. We are convinced however that it could not have been the intention of the parties that though the eighth defendant was finally declared to be entitled to particular sums fo money, nevertheless she should not obtain any relief by way of recovery of that money in execution of hte decree. It could never have been intended that she should file another suit to recover the amounts declared to be due to her. In our opinion the respondent, the eighth defendant. Should have brought to the notice of the Court the lacuna in the decree as drafted and we are certain that the Court would have made necessary modifications to the decree'.
8. The next case is abdul mohammed v. Armugham pillai, (1979) 1 Mad LJ 319 the facts of which are little and analogous to the case on hand, may briefly be noticed;
'The appellant and the respondent therein were owners of neighbouring properties. Disputes arose between them and each one filed a suit against the other for injunction, which were dismissed by the trial Court so also the appeals preferred aginst. When one of the parties went in second appeal to the High Court it passed a decree in the following terms: 'In the result, the decree of the trial Court confirmed by the lower appellate court,is modified by granting a declaration that the suit wall belongs to the plaintiff (abdul mohammed) exclusively, subject tot he right of the defendant (Armugham pillai) to rest his thatched roof thereon and that the plaintiff is further entitled to the accustomed supply of light and air through the ventilators as he has been receiving all along.'
9. Thereafter E.P. was filed which ended up in second appeal. In the E.P. appointment of a commissioner by the Court was asked for to enforce the right to air and light which, as per the allegation, of the decree-holder were being interferred with. The commissioner was appointed directing him as under:
'He is directed to carry out the directions of High Court's judgment in S.A. 895/70 and provide accustomed air and light to the plaintiff through the ventilators after removing any obstructions in providing the above supply'.
10. Appeal was preferred against the said order tot he district judge. The district judge held that execution petition did not lie as the remedy was only by way of filing a suit. Asagainst that C.M.A was preferred to lie High Court there the contention which was pressed into service was that whether a fresh suit would be a proper remedy or the matter could be agitated in execution of the decree the madras High Court held :that the proceedings in execution cannot be converted into a suit and that the proper remedy for the appellant is to file a suit to enforce that right. On the terms of the decree it is not self-executable and therefore, the execution petition was clearly not maintainable'.
11. In Bhavan Vaja v. Solanki hanuji : AIR1972SC1371 the Supreme Court while discussing the scope of s. 47 C.P.C held (at P. 1374):
'It is true that anexecuting Court cannot go behind the decree under execution. But that does not mean that if has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree, the Court often has to ascertain the circumstances under which these words came to be used. That is the plain duty of the executing Court and if that Court fails to discharge that duty it would be deemed to have failed to exercise the jurisdiction vested in it'.
12. In Topanmal v. Kundomal gangaram, : AIR1960SC388 the Supreme Court while dealing with the power of executing Court to construe a decree which is ambiguous held:
'The decree passed, at the worst could be said to be an ambiguous decree and it is the duty of the executing Court to construe the decree and for that purpose it would be certainly entitled to look into the pleadings and the judgment'.
In Sudhir v. B.K. Thapar, : 3SCR114 while dealing with a case where one of the terms of the lease relating to a cinema house was that after the expiry of the lease the lessee shall have the option to renew the lease with the consent of the lessor. At the end of the lease period, the lessor brought a suit for ejectment but died during its pendency. But however the suit was compromised between the legal representatives of the lessor and the lessees by which the tenancy was continued up to a certain time on the terms and conditions of the original lease, and the lessees were to vacate on a particular date. One of the legal representatives sold his share in the cinema house to the appellant who sought execution of the compromise decree on a date which the suit premises were to be vacated the lessees contended that the compromise created a fresh lease that the decree was only a declaratory one and that they were entitled to an extension of the lease on the basis of the renewal clause. Then the Supreme Court held: 'the question whether under the terms of a compromise the parties enteredinto a fresh lease or were only granted an extension of time for delivery of possession depends upon the intention of parties as expressed in the comrpomise and the decree based on it. On the terms of the compromise in the present case the lessors had granted a fresh lease and the lessees were given the option to renew the lease. Which was one of the terms of the original lease at the end of the term fixed that is 31st December 1982. Hence the direction in the compromise decree to vacate at the end of the term would be ineffective and would not amount to an ejectment decree. It is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get a renewal. Merely because the compromise had fixed the period during which the respondents continued as lessees, it did not mean that the renewal clause in the original lease had not become one of the terms of the agreement.'
13. On the above conspectus what emerges is that when there is ambiguity in the decree. Certainly it is competent for the executing Court to go behind the decree and look into the pleadings and the judgment so as to have the assistance from them in order to have the ambiguity dispelled. Therefore section 47, C.P.C. would not be a bar and the Court can call in aid the contents of the pleadings as well as the judgment. But however where the decree is clear, unequivocal and is not ambiguous, the Executing Court cannot call for the assistance of any of the documents, viz., pleadings' judgment and so on. It has to be spelled out from the decree itself as to whether it is a declaratory decree simpliciter or whether there are accompaniments to the decree with consequential directions in case the right conferred is not given effect to.
14. In so far as the decree in question is conderned in my judgment, it is a declaratory decree simpliciter. I do not find any ambiguity whatsoever in the decree so as to spell out as to what it contains. It merely confers the title in regard to the right of light and air to the plaintiff and it also says that he is entitled to an injunction restraining the opposite party from interfering with but, then there is no positive direction along with the declaration of the right, for the implementation of the said order prescribing the course of action in case the order and directions are not implemented. In fact in Ramanuja Naicker v. Seethalakshmi Ammal (1958) 2 Mad LJ 512) (supra) wherein apart from the entitlement to a particular sum of money it also sought to create a charge against the particular items mentioned in the schedule to the plaint. Notwithstanding that, Rajamannar, chief Justice held that it was only a declaratory decree because of the fact that if the direction for payment of money is disputed then what should follow. The case before me is a case of a fortiori. Here we lack good many details barring holding that the plaintiff is entitled to light and air by way of mandatory injunction, it has not laid down as to which of the pillars, on what direction and to what extent the balcony will have to be removed and if it is not obeyed what directions should follow in consequence thereof. Therefore, it is quite manifest from this decree that it lacks in many of the material particulars which a decree for mandatory injunction should inevitably contain. Particularly so, in the absence of any plan appended thereto and without any guidance whatsoever laid down, the executing Court cannot simply execute. It is for the Court which passes the decree to incorporate all these courses of action. In the absence of any, it is not competent for the executing Court to take a look at the pleadings and the consequential prayers made thereof and then execute the decree, as it will be amounting to reqriting the decree incorporating all those ingredients in it.
15. Yet another contention was sought to be pressed into service by the learned counsel for the respondents sri N. V. Suryanarayana Murthy that in the second appeal preferred against A. S. No. 94/69 the petitioners herein themselves made an allegation that as per the decree the respondentss are seeking to remove the pillars, and if so, it is too late in the day for the petitioners to argue that it is merely a declaratory decree and so they are estopped from raising the same. Ex. A.3 is the affidavit filed in support of a Miscellaneious petition filed in the second appeal. Reliance is placed by the learned counsel for the respondent on the following passages in Ex. A. 3.
'The learned subordinate Judge without considering the evidence on record and the probabilities of the case reversed the Judgment of the lower Court on surmises and conjectures. He held that the plaintiff is entitled to a mandatory injunction for removal of the balcony and the pillars constructed by me in the space 'ABCD' and for a permanent injunction restraining me from interfering with the light and air that were being enjoyed by the plaintiff'.
Taking advantage of the decree passed by the lower appellate Court, the respondent will now take steps for demolition of the balcony and the pillars constructed by me in the space marked 'ABCD' in the plaint plan which admittedly belongs to me. I will be subjected to grave hardship and irreparable loss unless the decree passed by the lower appellate Court is not suspended immediately'.
Based on this it is contended that no allegation that the decree is only a declaratory decree has been specifically made in the affidavit and therefore they are barred from pleading now in the executing Court. I do not find anything which would bar the petitioner herein from agitating that the decree is only a declaratory decree. What all has been stated is more or less an extract of the operative portion of the judgment. Therefore, this would not create any bar from agitating that the decree is a declaratory decree. Hence the contention of the learned counsel for the respondent which has no substance is rejected.
16. On the affidavit (Ex. A-3) filed in support of the C.M.P. the operation of the decree was suspended. On this basis it is osught to be contended by the learned cousnel for the respondent that since the appellant in that second appeal, who is the petitioner herein, did not raise any objection with regard to the executability of the decree on the premise that it was only a declaratory decree the respondent is now prevented from filing either a fresh suit or get the decree so amended. I apprehend this contention is not well founded either. The nature of the decree and the executability thereof are the matters which fall within the province of the executing Court. Therefore, this would not bar the petitioner herein from agitating about the executability of the decree at a time when the decree is sought to be executed and not at a time when the case is sought to be prosecuted on merits. Hence the contention is rejected.
17. In the circumstances the order under revision which is erroneous is set aside. The civil revision petition is allowed. No costs.
18. In view of the judgment in C.R. P. 2909/80 no order is necessary in Tr. C.M.A. No. 771/81. The Tr. C. A. Is accordingly disposed of No. Costs.
19. Order accordingly.