Madras High Court
Kannu Gounder vs Natesa Gounder on 30 March, 2004
Equivalent citations: AIR2005MAD31, (2004)3MLJ300, AIR 2005 MADRAS 31, (2004) 3 MAD LJ 300, (2004) 3 MAD LW 43, (2004) 4 CIVLJ 242
ORDER K. Gnanaprakasam, J.
1. This Civil Revision Petition is directed against the order dated 29.8.2003 made in E.P.186/99 in O.S.696 of 1984 on the file of Additional District Munsif, Vellore.
2. The Revision petitioner is the defendant/ judgment debtor. The respondent / plaintiff obtained a decree in O.S.696/84 and the decree in his favour was confirmed in A.S.81/93 and the same was also confirmed in S.A.No.1187/99. Pursuant to the same, the decree holder filed an execution petition for delivery of the suit property.
3. The revision petitioner objected the delivery of possession by filing a counter wherein he has stated that the plaintiff obtained a decree for mandatory injunction and that has got to be executed within a period of three years from the date of decree as per Article 135 to Indian Limitation Act and the decree was passed on 18.12.1991 and the second appeal was dismissed on 29.9.95. But, the Execution Petition was filed on 1.7.99 which is beyond the period of three years. Therefore, the plaintiff/decree holder is not entitled to have delivery of possession after removing the building constructed in the suit property as the decree for mandatory injunction was not executed within a period of three years. The said contention was negatived by the Court below and Execution Petition was ordered. Aggrieved by the same, the defendant has preferred the Civil Revision Petition.
4. Heard the learned advocate for the revision petitioner and the respondent.
5. The suit filed by the respondent/plaintiff is one for declaration and for possession and also for mandatory injunction and for other reliefs. Copy of the decree has been produced before this Court wherein clause (2) of the decree clearly provides for delivery of possession of the suit property. Of course, there is also a clause for mandatory injunction for the removal of the superstructure.
6. Now, the contention of the learned advocate for the revision petitioner is that having obtained a decree for mandatory injunction, he should have executed the said decree within a period of three years from the date of decree and the plaintiff has not chosen to execute the decree for mandatory injunction within a period of three years and therefore, the execution petition filed beyond the period of three years is hit by Article 135 of Limitation Act.
7. On the contrary, learned advocate for the respondent/plaintiff would submit that the plaintiff has not only obtained a decree for mandatory injunction but also a decree for possession. The period for executing the decree of possession is 12 years as it would fall under the Article 136 of Limitation Act. It is further submitted that when there is prayer for delivery of possession, the word 'delivery of possession' includes delivery of possession after removal of any manner of structure in the suit property.
8. In order to support his contention, the respondent/plaintiff also relied upon the case of Duraisami Mundaliar (Petitioner) Vs Ramasami Chettiar and another (Respondents) (1979 T.L.N.J.page 9) wherein this Court held that:
"the salutary 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, and decree could be made effective by directing its own officer to remove the superstructure on it (Emphasis applied) 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 superstructure on the land is an incidental power; necessary and ancillary to the power to deliver possession of the property."
9. In the case of B.Gangadhar (Petitioner) VS B.G.Rajalingam (Respondent)(1995 (2) M.L.J.(S.C.)107) the apex Court held as under:
" The exercise of incidental,ancillary or inherent power inconsequential to deliver possession of the property in execution of the decree. No doubt, the decree does not contain a mandatory injunction for demolition. But when the decree for possession had become final and the judgment-debtor or a person interested or claiming right through the judgment-debtor has taken law in his hands and made any constructions on the property pending suit, the decree-holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the decree for possession. it is not necessary to file a separate suit when the construction was made pending suit without permission of the Court. Otherwise, the decree becomes inexecutable driving the plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceedings."
As such, it is contended that though the plaintiff/decree holder had obtained a decree for mandatory injunction. It is only superfluous and when the Court granted a decree for possession, the said decree can be executed for removing any manner of superstructure in the suit property.
10. Learned advocate for the revision petitioner would once again submit that the decision rendered in 1995(2) M.L.J.(AS.C.) 107 is applicable only to the case, where the defendant/judgment debtor had put up construction during the pendency of the proceedings i.e.pendente lite. only and in the present case, the construction was put up by the defendant/judgment debtor prior to the filing of the suit and therefore, the construction cannot be removed. Though the ruling deals with the construction put up during the pendency of the suit, the same principle would be applicable even to the construction put up prior to the filing of the suit also. It is needless to point out that the construction put up by the defendant/judgment debtor whether before or after filing of the suit, is liable to be removed if there is a prayer for possession. When there is a decree for delivery for vacant possession which would mean and include, delivery after removing all the structures or anything in the suit property and therefore, the plaintiff/decree holder is entitled to take delivery of possession after removal of any manner of construction or structures in the suit property and therefore, I am not inclined to accept the arguments advanced on behalf of the revision petitioner.
11. In the above said circumstances,the order passed by the Court below does not warrant any interference by this Court. This Civil Revision Petition is dismissed. No costs. Consequently, connected C.M.P.15426/03 is also dismissed.
K. Gnanaprkasam, J.