- (1.) BOTH the civil revisions are against the orders passed by the Executing Court directing further process in execution finding that the judgment debtors and persons claiming under them have done actions in violation of the decree for injunction that was already granted on 07.12.1978. It is an admitted fact that respondent decree holder has secured a relief of injunction from putting up any construction. The execution petition was filed by the decree holder for attachment and arrest on the ground that in defiance of decree for injunction, the Municipal Committee has put up constructions. The Municipal Committee had two objections. One, the constructions that are put up were pursuant to lease deeds created in favour of the third party in the year 1974 itself and decree itself does not contain any prayer for removal of any construction. The second contention was that the execution petition was barred by limitation. C.R. No.1430 of 2006 was at the instance of another person, who had been impleaded as party at the execution stage by the decree holder contending that he was also making a claim under the Municipal Committee and his construction was in defiance of decree for injunction and that the construction was claimed under the judgment debtor Municipal Committee and therefore, he was liable to remove the construction and face punitive action in disobedience of the decree for injunction. It appears that the application for impleadment was dismissed originally but he had been directed to be impleaded as party by orders of Court in C.R. No.3170 of 1993. After the impleadment, the Executing Court has ordered further process in execution against the judgment debtor Municipal Committee and the person claiming under the Municipal Committee.
(2.) THE Municipal Committee has an argument to make before this Court to contend that the lease deeds have been executed even in the year 1964 in favour of third parties and they have put up their constructions at the property over which the plaintiff does not have any right. It is further contended that the decree itself is only for the relief of injunction and the decree holder has not proved that the property was vacant at that time to secure the relief of injunction. The counsel would argue that the plaintiff had not immediately taken action for filing execution after the decree was passed on 07.12.1978 and the fact that the execution petition was filed long afterwards showed that the Municipal Committee and persons claiming under them namely lessees had been in possession of property even prior to the decree and that the execution petition was for disobedience of the order and the decree for injunction is not maintainable.
(3.) THE Executing Court while considering these contentions has framed, in my view, the correct point for consideration of whether the judgment debtors were able to prove that there were any construction prior to the date of decree on 07.12.1978. All that the judgment debtor has relied on is production of rent deed in favour of third parties by the Municipal Committee which merely authorizes some temporary construction for a period of one year for carrying on vegetable vending. The document does not authorize any permanent structures to be put up. Apart from the lease deeds filed by the Municipal Committee, the lessee also gave evidence that he had been continuing to be possession of property. The Court has observed that even apart from the fact that the tenure of the lease itself was only for a period of one year, there was nothing on record to show that there was an authorization to put up any construction nor there was any proof, documentary or oral, that the constructions existed on the date when the decree was passed. The approach was correct, for a decree holder who has obtained a decree for injunction was not required to prove more than the fact that the decree for injunction cannot be enjoyed in its present form and that there is a construction. It shall be only for the judgment debtor to explain that the decree is unworkable, for the plaintiff's frame of suit was wrong and the constructions already existed. If there had been any construction which was there, it ought to have been an issue of fact that Municipal Committee must have pressed before the trial Court and ensured that the plaintiff's suit itself was dismissed. If the suit proceeded in favour of the plaintiff and a decree had been granted, it ought to be taken on its face value and an Executing Court cannot reopen matter which have been concluded at the trial Court. The Executing Court is not required to find out whether the plaintiff was right to file the suit in the manner he did. If the judgment debtor had failed in his defence to bring to the attention of the Court that the plaintiff cannot obtain a decree, having suffered the decree he cannot argue for the position that the decree itself is inexecutable since constructions already exist. The quality of evidence placed before the Court was grossly deficient and if the Executing Court had found that there was no proof of any permanent structures before the grant of decree on 07.12.1978, it had done it on appreciation of facts in evidence brought before the Court. There is no error of jurisdiction or perverse appreciation of facts for intervention in appeal. The third party claimant under the Municipal Committee cannot have any better right other than the judgment debtor himself had. If I am discarding the argument submitted by the Municipal Committee in C.R. No.1417 of 2006, the same logic ought to prevail for the contentions raised by the petitioners in C.R. No.1430 of 2006 as well. Both the revisions petitions deserve dismissal.;