Hon'ble TATIA, J. - (1.) THE petitioners are aggrieved against the order dated 25/8/2003 passed by the executing court in Execution Case No. 4/2003.
(2.) BRIEF facts of the case are that non-petitioner No. 1 Smt. Muli Devi filed a suit for prohibitory and mandatory injunction against the defendants-appellants and respondents No. 3 and 4 who are Urban Improvement Trust, Jodhpur and Municipal Corporation, Jodhpur. The case of the plaintiff as pleaded by her is that she is owner of the house situated on plot No. 144 of Maderna colony, Bhadwasia, Jodhpur, which she purchased by registered sale-deed dated 7/2/1994. The defendant Nos. 1 and 2 on an open land (ditch) towards the eastern side of the house of the plaintiff and which is situated towards north side adjoining to road forming a corner, encroached upon and raised a temporary construction for their residence despite having no right to do so. ON 24. 4. 1997, the defendant Nos. 1 and 2 on spot gave some instructions to the contractor, upon which the plaintiff came to know that they will raise pukka constructed house. According to the plaintiff, it will obstruct the air and light of the plaintiff's windows and ventilators and the plaintiff has since every right to use the open government land, therefore, the defendants be restrained from raising any construction and the defendants No. 3 and 4 may be directed to remove the encroachment of the construction by defendants No. 1 and 2. In the trial Court, defendants' No. 1 and 2 appellants did not file written statement and the trial Court closed the defendant's right to file the written statement. Defendant No. 4 U. I. T. Jodhpur submitted written statement and stated that the disputed land belongs to the U. I. T. , Jodhpur and the defendants No. 1 and 2 have no right to occupy and raise construction over it without obtaining permission of the U. I. T. , Jodhpur. Though written statement was filed by defendant No. 3 but no issues were framed by the trial court by observing that nobody has raised any objection about the plaintiff's claim despite the fact that relief was sought against defendant No. 3 also who contested the suit and filed the written statement. However, even though no issues were framed by the trial Court on the ground that no body has denied claim of the plaintiff still instead of decreeing suit of the plaintiff, the trial Court fixed the date for the evidence of the plaintiff. Plaintiff and her husband appeared as witness before the trial court. It appears from the finding recorded by the trial court in its judgment dated 22. 11. 2000 that the trial court took note of the fact that plaintiff's husband PW. 2 Vishwa Nath stated on oath that in the north side of the plaintiff's house, there is one complex (Sulabh Complex) and distance between the plaintiff's house and the house of Harji (defendant No. 1) is 20 ft. PW. 2 Vishwa Nath further admitted that there is a lane in between defendant's and plaintiff's house. He also admitted that in this lane plaintiff's doors and windows are opening. The trial court in the judgment held that every body has a right to use every inch of the public land and the defendants No. 1 and 2 since who are in possession of land and raised temporary (Kacha construction), want to raise the permanent construction over the land which appears to be not belonging to the defendants-petitioners, therefore, they have no right to keep their construction and the same may be demolished. The operative portion of the judgment is as under:- ....[Varnacular Text Ommited]... The decree holders submitted execution petition before the executing court which was registered as Execution Case No. 94/01. It appears from the record that the executing court fixed the date in execution case for 6/9/2002 but the decree holder plaintiff-non-petitioners submitted an application under Sec. 151, C.P.C. praying that she in execution petition, only prayed that encroachment from the public properly be removed and in execution she prayed for issuing possession warrant under Order 21 Rules 35 and 36, C. P. C. but direction may be issued to judgment debtors Nos. 3 and 4 U. I. T. , Jodhpur and Municipal Corporation, Jodhpur (only) to comply with the terms of the decree. By this the construction raised by the petitioner judgment debtors could have been removed without notice to the petitioner judgment debtors. Another reason for it might be because the plaintiff did not seek relief of mandatory injunction in the suit against the defendant Nos. 1 and 2 petitioners and she sought relief against the Municipal Corporation and the U. I. T. , Jodhpur that they may be directed to remove the defendant's petitioner's encroachment. In spite of decree holder's prayer to issue direction the U. I. T. and Municipal Corporation, Jodhpur the executing court issued notice under Order 21 Rule 32, C. P. C. to all the four judgment debtors including petitioners' private judgment debtors whose construction was sought to be removed. By notice under Order 21 Rule 32 C. P. C. the judgment debtors were directed to obey the directions given in the decree for removal of construction of the defendant's No. 1 and 2. In response to that notice under Order 21 Rule 32, C. P. C. , the judgment debtors, the present petitioners submitted reply raising objection about the executability of the decree. Judgment debtors petitioners pleaded that the decree in inexecutable because of the reason that from the decree, the property upon which decree is to be executed is not identifiable. In the decree as well as in the judgment and even in the plaint, there is no mention of any of the measurements like length or width of the property. Not property's neighborhood or any plot number has been given in the decree, judgment or even in the plaint. Not only above but it is not mentioned which of the property is to be removed because, according to learned counsel for the petitioner, admittedly a Sulabh Complex (Public Toilet) has been constructed by the Municipal Corporation in between plaintiff's house and defendant's house before the suit was decreed by the trial Court and this fact has been admitted by the plaintiff's husband witness before the trial Court. Therefore, the decree became inexecutable. There are so many other ground taken by the judgment debtors in their objection petition.
(3.) THE decree holders submitted reply to the objections and submitted that the decree is not nullity or inexecutable. In reply to the judgment debtors allegation about the identity of the property, the decree holders after denying the allegations stated that the judgment debtors did not read the decree properly. However, the decree holder herself could not give specific reply about the allegations of the judgment debtors about not mentioning of facts to identify the property and even did not disclose the measurements of the property, its neighbourhood and its any plot number to identify the property nor plaintiff could give area of the plot or particulars of the construction sought to be removed by executing the decree. It will be relevant to mention here that the judgment debtors also submitted an objection petitioner under Section 47, C. P. C. stating therein that there was a lane of 20 ft. in between the house of the decree holders and Harji Ram (judgment debtor) but now the State Government has constructed the Sulabh Complex in this lane. In view of the above, the execution petition may be dismissed. The executing court heard the arguments on this objection petitioner under Section 47, C. P. C. and even after noticing that objection petition filed by the judgment debtors under Order 21 Rule 32, C. P. C. is pending instead of deciding the two petitions together, the executing court by brief order dismissed the objection petition of the judgment debtors filed under Order 41 Rule 27, C. P. C. by observing that the judgment debtors did not submit any written statement in the trial Court and they cannot challenge the decree now in execution. The execution court also observed that the judgment debtors have challenged the judgment and decree dated 20. 11. 2002 by filing appeal but no stay order has been granted by the appellate Court. After all above, ultimately the petitioners objection petition filed under Order 21 Rule 32 C.P.C. was heard and dismissed by the executing court by order dated 25. 8. 2003. The executing court, after noticing the facts of the various applications and order passed on those application, held that the executing court cannot go behind the decree and cannot judge whether there is any illegality in passing of the decree or not. However, the executing court observed that in case, the decree is not found nullity or inexecutable then the executing court can proceed with the execution. The executing court also observed that to find out the true meaning of the decree, the pleadings also can be looked into. According to the executing court, by reading para 2 of the plaint, it is clear that the decree has been passed for the construction raised over the land mentioned in para 2 of the plaint and the property can be identified. With these reasoning, the executing court dismissed the petitioners' objection petition. ;