Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
PETITIONER:
SURINDER KUMAR & ANR.
Vs.
RESPONDENT:
ISHWAR DAYAL & ANR.
DATE OF JUDGMENT: 02/02/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 AIR 1351 1996 SCC (3) 103
JT 1996 (2) 655 1996 SCALE (2)SP70
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard the counsel on both sides. This appeal by
special leave arises from the order of the Punjab & Haryana
High Court made on 21.4.1994 in C.R.No.3801/93. In a suit of
perpetual injunction restraining the mother of the
appellants from constructing a window in the joint wall
ABFAEDC between F & G, the trial Court granted the decree on
the finding that 1-1/2 ft. thick wall was a joint wall and,
therefore, the appellants’ mother had no right to open a
window in the joint wall. The decree had become final.
Subsequently, the admitted facts are that 30’ area with the
aforesaid zig-zag wall was sold to the respondent-decree
holders and the appellants have constructed straight wall.
The respondent in the cross-examination had admitted that
the wall AB is 9" in width. The spot wall FG is also 9" in
width. The house was constructed by Surinder Kumar in
January 1991. Wall AB has also been constructed afresh. It
was also admitted that the wall A to B has been constructed
by Surinder Kumar in his own land. In view of these
admissions, it is now clear that the wall B to A is 9" thick
constructed by the appellants. The only dispute is whether
the wall between G to F is a joint wall. In view of the
admission made by the respondents that the present wall F to
G is also 9" thick and in view of the fact that there was a
sale made of the land in the zig-zag wall between a new wall
and the previous wall GFAEDC, the necessary conclusion is
that the joint 1-1/4 ft. thick wall no longer exists and a
new wall has been constructed.
The appellants having constructed a new wall admittedly
from B to A with 9" width and the wall F and G also with 9"
width, the necessary conclusion would be that the entire
straight wall was constructed with 9" width by the
appellants in their own land along with new house in which
now the window is admittedly opened. It would appear that it
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
was closed due to the contempt proceedings taken. The
question is: whether the decree passed in 1965 is
executable under Order 21 Rule 32, CPC. It says where a
party against whom a decree for perpetual injunction has
been passed, has had an opportunity of obeying the decree
and has willfully failed to obey it, the decree may be
enforced in the Case of a decree for injunction by his
detention in civil prison or by the attachment of his
property or by both. Though the appellants are successors
in interest, due to the fact that there is an altered
situation after the decree was passed and the appellants
had constructed a separate wall in their own land and opened
the window, the decree earlier passed became unenforceable.
Therefore, the execution laid under Order 21 Rule 32, CPC is
unenforceable and cannot be executed.
The court below, therefore, were wrong in proceeding
under Order 21 Rule 32 CPC to execute decree which did not
exist, It is contended by the respondents that in the sale
deed executed by the appellant, they have mentioned the wall
to be the joint wall. In view of the admission made by the
respondents in the evidence, though the recitals may be
there, the parties appear to have agreed for the altered
situation and in view of the altered situation when previous
joint wall is admittedly of 1-1/2’ width and the new wall
with only 9" width, the appellants have reduced the width of
their wall and opened the window in their own land for
enjoyment of easement of necessity of air. Accordingly, we
hold that the executing Court and the High Court were
clearly in error in directing execution of the old decree
which no longer existed and the closure of the window.
The appeal is accordingly allowed. No costs.