1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.349 OF 2009 Shri Atmaram alias Bhanudas Shanu Salgaocar, Major, r/o Colam-Karapur, Sanquelim, Bicholim Goa. …. Petitioner V/s 1. Shri Bhaskar Ganesh Sawaikar, Resident of Codal-Karapur, Sanquelim, Bicholim Goa. (since deceased) expired, through his legal representatives. 1(a) Smt. Saraswati Bhaskar Sawaikar, w/o decree holder. 1(b) Shri Balkrishna Bhaskar Sawaikar, s/o decree holder. 1(c) Smt. Sumitra Balkrishna Sawaikar, w/o B.B. Sawaikar, all r/o Codal, Karapur, Sanquelim, Bicholim-Goa. …. Respondents Mrs. A.A. Agni, Advocate for the Petitioner. Mr. A.D. Bhobe, Advocate for the Respondent. CORAM : N.A. BRITTO J. DATE : 7th JUNE, 2010 JUDGMENT: Heard. Rule. By consent, heard forthwith. 2. This writ petition is filed by the judgment debtors in Execution Application No.15/99/C and is directed against orders dated 7/04/2009 and 7/05/2009 of the learned Executing Court. 2 3. The respondents herein as plaintiffs had filed a suit, inter alia, seeking a relief of perpetual injunction against the defendants and also for a declaration to the effect that the old road was the free access road situated allowing the northern boundary running in east west direction of the said property surveyed under No.57/1 of village Karapur. 4. The suit was decreed in terms of prayers namely prayers 'b' and 'c' of the plaint and it has been submitted by Shri Bhobe that prayer 'a' was not granted because there was a temporary mandatory injunction which was granted and executed. However, this statement is contested by the learned advocate appearing on behalf of the petitioner. 5. Be that as it may, there is no dispute that the judgment debtors claim tenancy in respect of property surveyed under no.56 belonging to one Dubashi. The respondents/decree holders are the owners of the property surveyed under No.57/1. There is a road on the northern side of the property of the judgment debtors, as shown on the plan (at page 17 of the paper book). In between the property claimed by the judgment debtors and the property claimed by the decree holders there is a nulla which according to the decree holders is the old road. 6. The decree holders filed the execution application alleging that 3 the judgment debtors had reconstructed the lose stone compound wall on the same place which was caused to be removed and that the judgment debtors had raised plantation and construction on the suit access thereby causing an obstacle. The decree holders therefore sought the said access to be opened by removing whatever was existing on the said access, etc. 7. The judgment debtors first filed an application purporting it to be an application under Section 47 r/w Section 151 CPC and then filed an application dated 22/01/2009 stating therein that the judgment debtors had opened a loose stone compound wall on the eastern side of the property of the judgment debtors and had got the same also levelled and as such there was compliance of the decree. That application came to be rejected by the learned trial Court by order dated 7/04/2009 observing that the decree was passed against the defendants (judgment debtors) in terms of prayer clauses 'b' and 'c'. The learned Executing Court also observed that the Court could not go beyond the decree and the judgment debtors had not shown in what way their prayer was sustainable. The application for inquiry came to be rejected by order dated 7/05/2009 observing that in execution proceedings the judgment debtors cannot plead fresh facts and take a fresh plea stating that there is an alternate access for the decree holders to go through their property and therefore no access was required as per decree. 4 8. Mrs. A. Agni, the learned Counsel appearing on behalf of the judgment debtors submits that the suit was not decreed in terms of prayer clause 'a' but only in terms of prayer clauses 'b' and 'c'. Here, it may be stated that prayer (a) was for mandatory injunction to make open the old road by removing the old stone wall, prayer (b) was for permanent injunction and prayer (c) was for declaration. Learned Counsel further submits, referring to the sketch at page 31 of the paper book (same as at page 17) that there is a way connecting the property of the decree holders to the Karapur-Sanquelim road existing on the eastern side of the property of the judgment debtors. Learned Counsel has also produced two photographs claiming that they show the existence of the said way on the eastern side. The said two photographs are taken on record. Mrs. Agni further submits that the judgment debtors have claimed a tenancy from the said Dubashi and the application is pending before the Mamlatdar and any declaration of road of a way in favour of the decree holders through the tenanted property of the judgment debtors would amount to divesting the judgment debtors of their tenancy rights. Mrs. Agni further submits the said road has not been identified in the judgment of the trial Court. Mrs. Agni has placed reliance on Pratibha Singh and Anr. V/s. Shanti Devi Prasad and Anr. (AIR 2003 SC 643) wherein it is stated has follows; 15. Order 7 Rule 3 of the CPC requires where the subject- matter of the suit of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the Court to draw a 5 proper decree as required by Order 20 Rule 3 of the CPC. In case such property can be identified by boundaries or numbers in a record for settlement of survey, the plaint shall specify such boundaries or numbers. Having perused the revenue survey map of the entire area of R.S. plot No. 595 and having seen the maps annexed with the registered sale deeds of the defendant judgment-debtors we are clearly of the opinion that the sub-plots 595/I and 595/II were not capable of being identified merely by boundaries nor by numbers as sub-plot numbers do not appear in records of settlement or survey. The plaintiffs ought to have filed map of the suit property annexed with the plaint. If the plaintiffs committed an error the defendants should have objected to promptly. The default or carelessness of the parties does not absolve the Trial Court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the plaintiffs and should have insisted on a map of the immovable property forming subject-matter of the suit being filed. This is the first error. 16. The second error was committed during the execution proceedings. Under Order 21 Rule 32 of the CPC a decree for specific performance of a contract, on failure to obey, may be enforced by the judgment-debtor being detained in civil prison. Order 21 Rule 34 provides the procedure for execution of documents pursuant to a decree. Where a decree is for the execution of a document the decree holder may prepare a draft of the document in accordance with the terms of the decree and deliver the same to the court. Thereupon the court shall cause the draft to be served on the judgment-debtor together with a notice requiring his objections, if any, to be made out within time as the court fixes in this behalf. Where the judgment-debtor objects to the draft, his objections shall be stated in writing and then determined. The draft shall be approved of altered consistently with the finding arrived at by the Court. In the present case the plaintiff-decree holders pointed out that the defendant judgment-debtors were aware of the contents of the draft sale deed. The fact remains that the draft sale deed accompanied by a notice requiring objections to be made by judgment-debtor as provided by Sub-rule 2 of Rule 34 of Order 21 of the CPC was not caused to be served by the Court. The record also reveals the judgment-debtors repeatedly insisting, may be dogmatically, on draft sale deed being delivered to them enabling objections being filed. There is no determination by the Executing Court that the 6 immovable property as delineated and demonstrated in the map accompanying the draft sale deed was the property forming subject-matter of agreement to sell and the decree. Inasmuch as the possession is yet to be taken by the plaintiff decree holders this aspect can still be taken care of and that we shall do by making an appropriate direction in the operative part of this order. 9. On the other hand, Shri Bhobe, the learned Counsel appearing on behalf of the decree holders, submits that the learned trial Court has clearly identified the suit road – the dry nallah as the road shown on the survey plan Exhibit PW1/B which runs from east west direction, on the northern side of the property bearing survey no.57/1. The learned Counsel had also referred to the conclusion arrived at by the learned trial Court to the effect that the defendant had blocked the said access on 11/09/1987 for the plaintiffs to go to the said old road. In other words, the learned Counsel submits there was a clear finding about the existence of the said old road on the northern side of the property of the judgment debtors and to which plaintiffs had a right to go to the said road from the property which was lying on the southern side of the property of the judgment debtors, through an opening which was the only way to go to the property of the decree holders connecting the said old road. 10. There is a clear finding given in the Decree that the survey plan at Exhibit PW1/B shows the alleged suit road running in east west 7 direction towards the northern side of the property bearing survey no.57/1 (of the Decree holder). The petitioners have not produced a copy of Exhibit PW1/B. Once those were the findings given there was no question of identifying the existence of either the road or on the opening, in execution proceedings and the said opening which was again closed was required to be opened, as directed by executing Court. 11. As regards the submission that the direction to the judgment debtors would amount to divesting their rights of tenancy, it may be noted that such a plea was not raised in the written statement nor raised or considered by the Executing Court. Pointing out to para 7 of the reply, the learned Counsel submits that such a plea was raised before the Executing Court in the reply dated 22/06/2000. However, it appears that it was not pressed before the learned Executing Court and as such it cannot be allowed to be raised for the first time in certiorari jurisdiction. The decree has attained finality and needs to be executed. 12. Considering the above, I find there is no merit in this petition and consequently the same is hereby dismissed, with costs. Rule discharged. N.A. BRITTO, J. NH/-