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Ram Nath Vs. Smt. Tapesara and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 2364 of 1972
Judge
Reported inAIR1985All26
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 32
AppellantRam Nath
RespondentSmt. Tapesara and ors.
Appellant AdvocateR.N. Singh, Adv.
Respondent AdvocateGyan Prakash, Adv.
DispositionAppeal dismissed
Excerpt:
.....passed in earlier suit was in respect of an easementary right and after the northern house of decree-holder had fallen down about 20 years back, that easementary right came to an end. the learned additional munsif further directed that in case judgment-debtors failed to comply with the direction within one year the said house shall be sold and such compensation shall be awarded to the decree-holder out of the sale proceeds of the attached house as decree-holder is entitled. 87 of 1933. the question that requires determination in the present case is whether the judgment-debtors wilfully failed to obey the decree of the court. provides that where the party against whom a decree for specific performance of contract or for restitution of conjugal rights or for injunction has been passed..........relevant to this appeal are these :bhairo ram and mathura prasad, the predecessors-in-interest of decree-holder appellant filed suit no. 87 of 193.3 against ghasi kewat and others, the predeeessors-in-interest of judgment-debtors-respondents. the case of plaintiffs in that suit was that they were residing in house no. a1/28, mohalla balebir-ki-gali, ghaighat, varanasi and defendants of that suit were residing in the house lying north to the house of plaintiffs. three doors and windows in the northern wall of plaintiffs' house were in existence. it was pleaded in that suit that the defendants be restrained from constructing the wall towards north of that house in a manner so as to obstruct the light and air of the doors and windows of the plaintiffs' house. ultimately the suit was.....
Judgment:

V.N. Khare, J.

1. This second appeal arises out of Execution Application filed by decree-holder appellant under Order 21, Rule 32 C.P.C. before the Additional Munsif, Varanasi.

1-A. Brief facts relevant to this appeal are these :

Bhairo Ram and Mathura Prasad, the predecessors-in-interest of decree-holder appellant filed suit No. 87 of 193.3 against Ghasi Kewat and others, the predeeessors-in-interest of Judgment-Debtors-respondents. The case of plaintiffs in that suit was that they were residing in house No. A1/28, Mohalla Balebir-ki-Gali, Ghaighat, Varanasi and defendants of that suit were residing in the house lying north to the house of plaintiffs. Three doors and windows in the northern wall of plaintiffs' house were in existence. It was pleaded in that suit that the defendants be restrained from constructing the wall towards north of that house in a manner so as to obstruct the light and air of the doors and windows of the plaintiffs' house. Ultimately the suit was decreed in the terms of the compromise. The terms of the compromise were that the defendants shall not raise any construction on the first floor of the southern portion of their house which may be higher than the doors and windows of the plaintiffs' northern wall and that in case if the defendants wanted to make construction above the first storey they may do so after leaving a space of 3 feet towards north of the northern wall of the plaintiffs' house. On 26-7-1968 the decree-holder appellant moved an application under Order 21, Rule 32 C.P.C. wherein it was alleged that the northern portion of the house No. A1/28 which was subsequentlynumbered as A1/28A came in his share as a result of partition, that the judgment-debtors constructed the southern wall of their house without leaving 3 feet space towards north of the house of the decree-holder and that newly constructed southern wall obstructed the light and air of the doors and windows of the decree-holder's house. It was prayed therein that the wall so constructed by the judgment-debtors be attached and demolished by the judgment-debtors at their costs.

2. The judgment-debtors respondents filed objection under Section 47 C.P.C. The objections inter alia were that judgment-debtors had not wilfully failed to obey the compromise decree and that in any case compromise decree passed in earlier suit was in respect of an easementary right and after the northern house of decree-holder had fallen down about 20 years back, that easementary right came to an end. The learned Additional Munsif allowed the application of the decree-holder and directed that an attachment order shall remain in force till the removal of southern wall of judgment-debtors' house from its present position to a distance of 3 feet to northern wall of the decree-holder's house in terms of the compromise decree. The learned Additional Munsif further directed that in case judgment-debtors failed to comply with the direction within one year the said house shall be sold and such compensation shall be awarded to the decree-holder out of the sale proceeds of the attached house as decree-holder is entitled. On appeal the learned Additional District Judge set aside the order of learned Additional Munsif and allowed the objection of judgment-debtors filed under Section 47 C.P.C.

3. Learned counsel for the appellant contended that the appellate Court has erroneously held that judgment-debtors had not wilfully disobeyed the compromise decree passed by the Court in suit No. 87 of 1933. The question that requires determination in the present case is whether the judgment-debtors wilfully failed to obey the decree of the Court. Order 21, Rule 32 C.P.C. provides that where the party against whom a decree for specific performance of contract or for restitution of conjugal rights or for injunction has been passed has had an opportunity of obeying the decree and has wilfully failed to obey it the decree may be enforced for specific performance of contract or for conjugal rights by detention in civil prison or by attachment of his property or by both. A perusal of above provision shows that mere breach of the terms of decree by the judgment-debtors is not enough. They must have wilfully disobeyed the direction contained in the decree. The word 'wilful' has not been defined. 'Wilful failure' is a legal term evidently used as a description and not as a definition. 'Wilful failure' means want of bona fide. In Ram Autar v. Kaushal Kishore, AIR. 1965 Air 44 wilful disobedience of decree for injunction by party bound by it is necessary to exercise jurisdiction under the rule. The jurisdiction conferred under Order 21, Rule 32 C.P.C. can be exercised only when party against whom an injunction has been passed wilfully failed to obey it. The Court shall not grant relief unless there is wilful failure to obey the decree. The appellate Court has recorded a finding that the judgment-debtors have not wilfully disobeyed the compromise decree passed in the year 1933. The objectors in their objection under Section 47 C.P.C. stated that the house of decree-holder appellant had fallen down 20 years back. The Commissioner in his report (paper No. 11 Gha) reported that the house of decree-holder appellant is lying in Khandhar. Northern wall of decree-holder's house has been partly dismantled and partly fallen down and only doors and windows remain there. In fact there is open sky above the floor towards the south of the alleged doors and windows. The oral evidence of decree-holder appellant that the northern portion of the house fell down about 2 years back without any corroboration was found unworthy of reliance. The appellate Court found that the version of judgment-debtors that the Khandhar is lying for the last 20 years appears to be natural and probable. These findings recorded by the appellate Court are correct and have not been shown to be vitiated by any legal infirmity. After the house has fallen down there was no question of obstruction oflight and air of the windows and doors of the house which were in existence before 20 years. The decree-holder appellant has allowed the Khandhar to remain for the last 20 years and in such circumstances if the judgment-debtors constructed wall on the southern portion of their house it cannot be held to be wilful failure to comply with the decree passed in the suit of 1933. The decree-holder neither made any effort to raise construction over the land where the house had fallen down nor he ever objected to the judgment-debtors, raising of the wall on the southern side of the house. The finding recorded by the appellate Court that there was no wilful failure on the part of judgment-debtors in raising the construction is correct.

4. It was next urged by the learned counsel for the appellant that, there was not a complete destruction of dominant or servient heritage and only a portion of the house had fallen down and as such Section 45 of the Basement Act is not attracted and he relied on the decision of a learned single Judge of this Court reported in AIR 1967 All 302 (Makhan Lal v. Indra Prasad) in support of his contention. Lower appellate Court has recorded a finding on basis of evidence on record that the house on the northern side had completely fallen down. It has not been pointed out that the house on the northern side was part of any existing house. In view of the fact that the complete dominant heritage had fallen down Section 45 of the Easementary Act was applicable.

5. No other point was pressed before me.

6. In view of above, there is no merit in this Second Appeal. It is accordingly dismissed but in the circumstances of the case there will be no order as to costs.


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