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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

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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.