V. Balasubrahmanyan, J.
1. The appellant in this second appeal, one Abdul Mohammed, and respondent Arumugham Pillai were owners of neighouring properties. Disputes arose between them and they ended up in civil Court, each one filing a suit against the other for injunction. Both the suits were dismissed by the trial Court, and the respective appeals filed against such dismissal shared the same fate. The appellant Abdul Mohammed, however, took the matter in second appeal before this Court in S.A. No. 895 of 1970. While disposing of that second appeal, this Court passed the following decree:
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 to the right of the defendant (Arumugham 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.
Subsequent to the disposal of the second appeal in the manner aforesaid, the appellant Abdul Mohammed, apparently was chagrined by the acts of the respondent Arumugham Pillai. He filed E.P. No. 685 of 1974 before the learned District Munsif, Pudukkottai as an execution petition arising from O.S. No. 47 of 1965 which ended up in this Court in S.A. No. 895 of 1970. In that execution petition, he asked that a Commissioner be appointed by the Court to enforce his right to air and light, which according to him, were being interfered with by the respondent Arumugham Pillai. The learned District Munsif accepted the application and appointed an Advocate-Commissioner, observing that 'he is directed to carry out the direction of the High Court's judgment in S.A. No. 895 of 1970 and provide accustomed air and light to the plaintiff though the ventilators after removing any obstructions in providing the above supply'. The respondent Arumugham Pillai appealed against this order appointing a Commissioner. In the appeal, he contended before the learned District Judge that on the terms of the decree passed by this Court in S.A. No 895 of 1970, the appellant, if he had any grievance against the respondent, could only seek the remedy by way of filing a suit to enforce right which had been declared by this Court under its decree.
It was contended that the filing of an execution petition would not invoke the requitsite jurisdiction of the Court to redress the grievance of the appellant even if it were found to be well-founded. The learned District Judge accepted this contention and held the execution petition did not lie. He accordingly allowed the appeal and dismissed the execution petition. The appellant Abdul Mohammed has now brought this C.M.S.A. against the order of the learned district Judge.
2. M.R.S. Tyagaraja Ayyar, learned Counsel for appellant did not wish that I should go into the question whether a fresh suit would be an appropriate remedy or whether the matter could be agitated in execution of the decree of this Court. He referred to provisions of Section 47(2) of the Code of Civil Procedure (before its amendment by Central Act (CIV of 1976) and said that the executing Court has always the power to convert even a proceeding in execution as a suit and try it as a suit subject to proper court-fee being paid thereon on the basis that it is a suit.
3. I do not think I can accept the course of action suggested by the learned Counsel either as appropriate or as legitimate. Sub-section (2) of Section 47, before its, repeal, undoubtedly empowered the Court to convert an execution petition into a suit. But, it does not mean that where an execution petition did not lie, it can nevertheless be treated as or converted into a suit and the trial proceeded with on the footing that it is a suit. In other words, the question whether the execution petition in this case did or did not lie has to be faced squarely and answered before the question of applicability of Sub-section (2) of Section 47 can be considered. In my view, on the terms of the decree of this Court in S.A. No. 895 of 1970 all that the appellant got was a declaration of his right, among other things, to accustomed air and light to his premises. If the appellant has a genuine grievance that the right is being interfered with by the respondent, the proper remedy for the appellant in to file a suit to enforce that right. On the terms of the decree in S.A. No. 895 of 1970, it is not, if I may use the expression, self-executable. Hence the execution petition was clearly not maintainable. Section 47(2) is assumptive of the maintainability of execution proceedings which proceedings may at the discretion of the Court, be converted into a snit and the trial proceeded with on that fooling. The provision cannot be invoked in a case where the execution proceedings themselves are found not maintainable. I am, therefore, unable to agree with the submission of the learned Counsel for the appellant or accede to his request that the execution petition which his client has filed may be directed to be converted into a suit an payment of appropriate Court-fee. The result is that this, civil miscellaneous second appeal must be dismissed and the order of the learned District Judge confirmed. I do so accordingly. There will, however, be no order as to costs.