Delhi District Court
Girdhari Lal (Now Deceased) vs Phool Singh And Another . ... on 5 December, 2012
1
In the court of Sh. Vivek Kumar Gulia
Commercial Civil Judge cum ARC (North District)
Tis Hazari Courts, Delhi.
Ex. No. 142/06
In the matter of :
Girdhari Lal (now deceased)
through L.Rs. ..............DH/Plaintiff
Holders
Versus
Phool Singh and another . .........JDs/Defendants
ORDER
1. Vide this order, I would dispose of objection petition u/s 47 read with Section 151 CPC filed by JD no. 1.
2. By way of this petition, it is mentioned that the suit of the DH was decreed against JDs vide judgment dated 31.07.1982 whereby JDs were directed to close down two doors at place 'C' and 'D' at the ground floor opening towards plot of plaintiff and further they were permanently restrained from raising construction of staircase over the plot of plaintiffs. Further, it is Page 1 of 4 Ex. 142/06 2 mentioned that the JDs closed down doors at point 'C' and 'D' and thereafter, LRs of DH constructed staircase in front of closed door at point 'D'. Further, it is mentioned that now JDs have made another door at point 'X' towards passage as they had no other option for ingress and egress except through common passage leading to the street. Further, it is mentioned that after sometime JDs entered into Agreement to Sell of their property with one Sanjay who is in occupation of it. Further mentioned that the DH got written from Sanjay under pressure that he will close down the door at point 'X' in ten days time when bailiff went to suit property. In view of above, it is prayed that execution proceedings be dropped as has been satisfied.
3. The DH filed reply to this application mentioning that JDs had assured number of times to close down the doors at point 'C' & 'D' but they have not complied with. It is mentioned that JDs have closed only one door at point 'D' and they are still using door at point 'C'.
4. I have heard the Bar and perused the record.
5. The most emphasized plea of objector/JD is that since he has already closed down two doors at point 'C' & 'D' opening towards plaintiffs plot in common passage in view of directions given vide judgment and decree dated 31.07.1982, the decree stands satisfied. Further, it is pleaded there was no specific direction that he could not open door at any other point towards the Page 2 of 4 Ex. 142/06 3 common passage. It is also asserted that property of JDs is surrounded by other built up properties from all sides and therefore, they had no other option but to make new entry in common passage. On the other hand, Ld. Counsel for the DH argued that alleged common passage is exclusive property of plaintiff/DH and for that reason only, the defendants/JDs were directed to close down the doors but still they have intentionally disobeyed decree dated 31.07.1982.
6. It is evident that vide decree dated 31.07.1982, the defendants/JDs were directed to close down two doors at point 'C' & 'D', shown in red colour in the site plan of the ground floor, opening in the passage towards plot of the plaintiff and they were also restrained permanently from raising construction of staircase over the plot of plaintiffs. Though a court executing decree cannot go behind a decree but it is quite competent to construe to decree to ascertain its precise meaning and the construction must be governed by the pleadings and the judgment (AIR 1957, Ker. 31, AIR 1957 Pat. 575). If we go through judgment dated 31.07.1982 and the judgment of appellate court dated 14.08.1984, it becomes clear that decree in this case was passed while observing that the said passage falls in the property of plaintiffs and had been left by them for their exclusive use. In such circumstances, the plea of JDs/defendants that the passage is common and that is why they are entitled to open a door at point 'X' towards common passage is found to be baseless. The very basis for decreeing the case in favour of the plaintiff was that the passage towards which door were Page 3 of 4 Ex. 142/06 4 opened by JDs/defendants at point 'C' & 'D' was the exclusive property of the plaintiff and in such circumstances, if defendants are permitted to open any other door at different point then that would frustrate the decree and would be mockery of justice. It is also important to note down that in para no. 13 of said judgment it was held that defendants are to be restrained from encroaching upon plot of plaintiff in any manner whatsoever. Thus, using the passage falling in property of plaintiff through any gate, be at pt. X or anywhere else, by defendants/JDs would be nothing short of encroachment.
7. In view of above, I do not see any merit in the objections. Accordingly, same are dismissed.
8. JDs or their successors in interest, if any, are given one months time to close the door at point 'X', as shown in the site plan filed alongwith objections. Further, it is made clear that JDs shall not open any door towards property of the plaintiff, more specifically towards passage, and they have to make provision for their ingress and egress at place where there plot touches with the public street. If the aforesaid directions are not complied with, coercive action shall be taken against the JDs in view of provisions of Order 21 Rule 32 CPC.
Announced in open Court [VIVEK KUMAR GULIA] on 05 Day of December, 2012. CCJ cum ARC (North District) th [This judgment contains 4 pages] Tis Hazari Courts, Delhi Page 4 of 4 Ex. 142/06 5 Page 5 of 4 Ex. 142/06