- (1.) THE Civil Revision Petition is filed under Article 227 of the Constitution of India praying to set aside the order and decreetal order of the Trial Court in E.A.No,4459 of 2007 in E.P.No.1047 of 2006 in O.S.No,8417 of 1994 dated 31.01.2008 passed by the IXth Assistant Judge, Civil Court and to allow the Revision Petition by dismissing the application filed under Section 47 of the Civil Procedure Code.)THE Petitioner / Plaintiff / Decree Holder has filed the Civil Revision Petition as against the order dated 31.01.2008 in E.A.No,4459 of 2007 in E.P.No.1047 of 2006 in O.S.No,8417 of 1994 passed by the Learned IXth Assistant City Judge, City Civil Court, Chennai.
(2.) THE Executing Court while passing orders in E.A.No,4459 of 2007 on 31.01.2008 in E.P.No,4459 of 2007 in O.S.No,8417 of 1994 has interalia opined that '... it is also argued that when the decree is silent about superstructure under caption of five persons without ordering demolition of superstructure by the order of the decree it is found as argued by the petitioner that the decree at present as available is found to be one which is not executable. Hence, this petition under Section 47 of Civil Procedure Code is entertained at this stage by holding a view that the decree is not executable without the order for removal of superstructure indeed. Hence, this petition stands allowed as prayed for with a finding that the decree is not executable at present without the proper relief in the decree as the property is with pacca superstructure' and resultantly allowed the application without costs. The Learned Counsel for the Petitioner / Plaintiff / Decree Holder urges before this Court that the impugned order dated 31.01.2008 passed by the Executing Court in E.A.No,4459 of 2007 in E.P.No.1047 of 2006 in O.S.No,8417 of 1994 is against law, without jurisdiction and moreover the Executing Court has over looked the decisions referred to on the side of Revision Petitioner / Decree Holder which points out that even in the absence of decree for removal of superstructure, an Executing Court has got wide power to issue directions for removal of superstructure so as to enable the Revision Petitioner to obtain possession of the vacant land and indeed the Executing Court as erred in coming to the conclusion that the Petitioner / Decree Holder cannot execute the decree at present in the absence of removal of superstructure and that apart the Executing Court ought to have directed the Judgment Debtor to remove the superstructure was put up by him as to effectuate vacant delivery of the suit site to the Decree Holder and also that the Executing Court is empowered to determine all questions relating to right, title or interest in the property in execution proceedings, but these aspects of the matter have not been adverted to by the Executing Court in a proper prospective and therefore prays for allowing the Civil Revision Petition in the interest of justice. The Learned Counsel for the Revision Petitioner / Decree Holder cites the decision B.Gangadhar v. B.G.Rajalingam 1996 TNLJ at page 24 at special page 27 wherein the Honourable Supreme Court has observed that ' Order 21 Rule 35 (3) of Civil Procedure Code itself manifests that when a decree for possession of immovable property was granted and delivery of possession was directed to be done, the 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 superstructure made pendente lite. The exercise of incidental, ancillary or inherent power is consequential to delivery possession of the property in execution of decree etc'.
(3.) HE also relies on the decision in Duraisami Mudaliar v. Ramasami Chettiar and another 1979 TNLJ at page 9 at special page 11 wherein it is held as follows ... " In such a case, in the execution of the decree for possession, the Executing Court can order the removal of demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in A.I.R.1934 Lah.97 and A.I.R.1970 All. 648". Also on the side of the Revision Petitioner, the attention of this Court is invited to the decision ''Arthur Theodore James (deceased) and two others v. Mrs.Hanna Rosaline and 4 others 1999-1-L.W at page 222 wherein it is held thus, '' Merely because decree does not provide for removal of super-structure, power of Executing Court cannot be belittled and decree will not become inexecutable''.;