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Duraisami Mudaliar Vs. Ramasami Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)1MLJ380
AppellantDuraisami Mudaliar
RespondentRamasami Chettiar and anr.
Cases ReferredMohd. Ismail v. Ashiq Hussain
Excerpt:
- .....certain facts are not in dispute. the plaintiff obtained a decree declaring his right over the suit vacant site and for possession of the same. both the trial court as well as the appellate court made it clear that the decree for declaration and possession is referable only to the vacant site and not to the superstructure, which is said to be in the nature of a bunk shop and is said to have been put up by the first defendant even prior to the institution of the suit. no relief is said to have been claimed by the first defendant in respect of this superstructure. the plaintiff levied execution of the decree in e.p. no. 155 of 1977. the first defendant filed e.a. no. 243 of 1977 praying for an order that the plaintiff is not entitled to possession of the superstructure mentioned in the.....
Judgment:
ORDER

Nainar Sundaram, J.

1. The first defendant/judgment-debtor in O.S. No. 356 of 1963 on the file of the District Munsif, Dharapuram, is the petitioner in this revision petition. The first respondent herein is the decree-holder/plaintiff in the suit. Certain facts are not in dispute. The plaintiff obtained a decree declaring his right over the suit vacant site and for possession of the same. Both the trial Court as well as the appellate Court made it clear that the decree for declaration and possession is referable only to the vacant site and not to the superstructure, which is said to be in the nature of a bunk shop and is said to have been put up by the first defendant even prior to the institution of the suit. No relief is said to have been claimed by the first defendant in respect of this superstructure. The plaintiff levied execution of the decree in E.P. No. 155 of 1977. The first defendant filed E.A. No. 243 of 1977 praying for an order that the plaintiff is not entitled to possession of the superstructure mentioned in the decree. Obviously this is an attempt to stultify the execution of the decree for possession. The contention urged by the first defendant in the first Court as well as in the lower appellate Court is that in the absence of a decree directing the removal of the superstructure, the decree in the suit for delivery of possession of the suit site alone cannot be executed. Because this contention was not appreciated and accepted by the first Court as well as the appellate Court, the present revision petition has been preferred by the first defendant. The very same contention is being repeated before me.

2. The question for consideration in this revision is when a superstructure has been admittedly put up by the judgment-debtor prior to the institution of the suit and the decree which comes to be passed in the suit does not direct the removal of the superstructure while ordering the delivery of possession, can the execution of the decree be denied to the decree-holder.

3. The statutory principle which has got to be kept in mind is that where a Court directs by a decree or order that vacant possession of land should be given, that decree can be made effective by directing its own officer to remove the superstructures on it, and to deliver vacant possession of the property to the decree-holder. It may not be necessary to have any specific power in that behalf, and such a power is exercised in every case in which vacant possession is ordered. The power to remove the superstructures on the land is an incidental power; necessary and ancillary to the power to deliver possession of the property. If, however, should there be any obstruction within the meaning of Order 21, Rule 97 of the Code of Civil Procedure, that has not to be dealt with specifically under the said provisions. This has been recognised by Satyanaravana Rao, J., in K. Arumugham Naicker and Anr. v. Sri Thiruvalluva Nainar Temple by its Trustees : AIR1954Mad985 . Of course, the learned Judge was concerned with a case, where the relationship of landlord and tenant prevailed and the proceedings were one under Section 41 of the Presidency Small Cause Courts Act.

4. There will not be any difficulty with reference to a case where the superstructures came to be put up by the defendant either during the pendency of the suit or after the decree. In such a case, in execution of the decree for possession, the executing Court can order the removal or demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in Narain Singh v. Imam Din A.I.R. 1934 Lah. 978 and that has been followed by D.S. Mathur, J., in Mohd. Ismail v. Ashiq Hussain : AIR1970All648 , suggesting appropriate directions according to the needs of particular cases.

5. Where, however, the superstructures were put up before the institution of the suit and were not ordered to be removed as a part of the mandate in the decree, the proper course in appropriate cases would be to direct the judgment-debtor to remove the superstructures so put up by him so as to effectuate vacant delivery of the suit site to the decree-1 holder. In Kauk Sike v. Onq Hock Sein A.I.R. 1927 Rang. 82, Duckworth, J., passed an order in the second appeal as follows:

I modify the order of the lower Court by directing that the appellant to vacate the building on the land as soon as this order is communicated to him and that he be granted two months from this date within which, if he so pleased, he may dismantle the building and remove its material.

The directions adopted by Duckworth, J., were followed by D.S. Mathur, J., in Mohd. Ismail v. Ashiq Hussain : AIR1970All648 and the learned Judge observed that where the constructions were made before the institution of the suit, the rule laid down in the Rangoon case could be adopted.

6. I am inclined to follow the ratio enunciated by D.S. Mathur, J., in the Allahabad decision to the facts of the present case and that presents a workable solution in a case like the present one where the superstructure was put up by the defendant before the institution of the suit and there is an omission in the decree to direct its removal. If the above principle is kept in mind, I do not find that the judgment-debtor could put forth any tenable objection with reference to the execution of the decree as it now stands. I do not find any merit in the contention of the first respondent/revision petitioner and accordingly this civil revision petition is dismissed. But there will be no order as to costs. However, adopting the ratio set out above, the first defendant/judgment-debtor is granted four weeks time from today to remove the superstructure if he so desires. In case the first defendant/judgment-debtor does not remove the superstructure so as to facilitate delivery of vacant possession of the suit site to the decree-holder, the executing Court will deliver the property to the decree-holder as it stands at the time of the delivery, leaving the decree-holder to decide as to how to deal with the superstructure.


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