P (PLP)

Akhlaque Hussain, for Appellant. Muhammad Iqbal Hussain, for Respondent. JUDGMENT.‑

These Execution Second Appeals Nos. 266 and 267 of 1949 have arisen in the following circumstances. The appellant, Abdul Shakur Khan, had presented two petitions for permission to construct two houses to the Municipal Committee, Multan. No intimation was given to the appellant within the statutory period of sixty days as required by section 193, Municipal Act, as to whether the petitions had been accepted or rejected, and consequently the petitions must be deemed to have been sanctioned, except in so far as the buildings to be erected might contravene any bye‑law or any building or town planning scheme sanctioned under section 192 of the Act. It was only on the 9th of May 1947, that the Committee notified the appellant that his applications had been rejected. When the appellant wanted to start the construction work, he was given notices under section 195 of the, Act by the Municipal Committee, restraining him from erecting' .the buildings. Feeling aggrieved by these notices, the appellant instituted two suits on the 2nd of July 1947, praying for declarations' at he was entitled in law to erect the buildings in question and for permanent injunctions restraining the Committee from interference with his right to construct the buildings. These suits were decreed by the trial Court on the 16th of July 1948. Permanent injunctions were granted to the appellant as asked for. On the 4th August 1948, however, the Committee again served two notices on the appellant under section 195 of the Act warning him that he should not start construction as the period of sanction had already lapsed. Under section 194 of the Act this period is limited to one year from the date of the actual or deemed sanction. It appears that the appellant started building his boundary wall and notices were then served on him by the Committee bearing the date the 30th of August 1948, calling upon him to stop the construc tion under section 195‑A of the Act. On the same day notices were issued to him under section 195 also calling upon him to demolish the compound wall which he had built, It was after this that on the 28th of September 1948, the appellant sought out execution of his decrees against the Municipal Committee and prayed for attachment of the property of the judgment‑debtor for non‑compliance with the injunctions granted to him. The execu ting Court took the view that the injunctions granted to the appel lant must be taken as subject to the statutory provisions of section 194 of the Punjab Municipal Act, and as the period of sanction had lapsed, the decrees could not be executed. On appeal, the learned Senior Subordinate Judge, Multan, agreed with this view and confirmed the order passed by the executing Court. These second appeals have, therefore, been filed in this Court to challenge the orders of the Court below. Mr. Akhlaque Hussain on behalf of the appellant has forcefully contended before me that the executing Court was not entitled to go behind the decrees but was obliged to execute them as they stood. He pointed out that the sanction had lapsed even before the decrees were granted to his client and if section 194 of the Act was to stand in the way of the appellant, no decrees should have been granted to him at all. In support of his contention learned counsel relied on Shrinath Chatterjee v. Kedar Nath Rai (A. I. R. J. 1925 Cal. 276 (2), Devi Das v. Mst. Roan Bai (A.I.R. 1930 Lah. 589 (2) ) and Khatemannessa Bibi v. Upendra Chandra (A. I. R. 1928 Cal. 804). He has argued that there was no sense in the trial Court passing infructuous decrees. Now that the decrees have been passed, even though erroneously, they had to be executed as they stood, as they had not been appealed against and had become final. According to him, the Committee could have taken the point during the pendency of the suits that the sanction for construction had lapsed by virtue of section 194 of the Act. Learned counsel for the Municipal Committee, Mr. Iqbal Hussain, on the contrary has argued that at the time the written statement was put in by the Committee, the sanction had not yet lapsed, so that this plea could not be taken in that written state ment. At a subsequent stage when the sanction lapsed, the point could only have been raised with the permission of the Court and not as a matter of right by the defendant. He also pointed tuft that on the lapse of the period of sanction, the appellant could have applied for extension of the sanction under section 194 of the Act. He further argued that as the decrees for permanent injunctions not contain the words "restrained for all time", those decrees were subject to the limitations imposed by statute, namely, those contained in section 194 of the Act. According to 'him the "per manent injunctions" granted, should be interpreted to mean such injunctions as would be operative within the period specified in that section. The principle contended for by the learned counsel for the appellant that an executing Court cannot go behind the decree, and must execute them as they stand, may be accepted as well‑estab lished. In my opinion, however, the appeals merit dismissal on the ground that the decrees are no longer executable. In the executing Court the objection was taken on behalf of the Committee that a building scheme had been sanctioned by the Punjab Government under section 192 of the Punjab Municipal Act for the area in which the disputed buildings were sought to be erected, and the sites attempted to be built over had been declared to be a public street under that scheme. The order sanctioning the scheme was passed by the Punjab Government on the 31st March 1948. This point was urged in the Courts below but was apparently not appreciated in its right context. The executing Court framed issue No. 2 as follows‑‑ Has the site in dispute been declared a public street? If so, what is its effect? The Court of first instance found that this plea should have been taken during the pendency of the suits and could not be raised now. The learned Senior Subordinate Judge does not appear to have touched this point in his judgment. He merely observed that the point whether the sanction had lapsed was not concluded by the principle of res judicata as there could be no estoppel against drawn to the last proviso to section 195 of the Act, which reads as follows:‑ "Provided also that the Committee shall require a building to be demolished or altered so far as is necessary to avoid contraven tion of a building scheme drawn up under section 192." The sanction of the scheme gave an independent cause of action to the Committee to call upon the appellant to demolish his construction as it clearly contravened the building scheme sanctioned during the pendency of the suits and under which the site in dispute was to be used as a street. This Proviso could only be pressed into service by the Committee when the appellant actually started constructing the buildings and that did not happen till after the decrees had been passed. The remark of the executing Court that the point should have been taken during the pendency of suits is in apt. The notices consequently issued by the Committee requit ing the appellant to demolish his structure had statutory authority and could not be regarded as contravening the injunctions granted to the appellant in the suits. That an executing Court may declare a decree to be incapable of execution is a proposition that admits of no doubt. In such cases 1he Court is not going behind the decree. For instance, if a decree affecting immovable property is compulsorily registerable, but is not registered, the executing Court can declare that the decree is not capable of execution. Again, a judgment‑debtor is not debarred from raising a plea that the decree has become incapable of execu tion by reason of subsequent legislation. Reference may be made in this connection to A. I. R. 1941 Mad.

126. On this short ground, therefore, the appeals must fail, and I hereby dismiss them. It seems to me that the appellant is himself to blame for the result. Instead of going to Court, he should have started construction soon after his petitions were deemed to have been sanctioned. He took apparently wrong advice and wasted his time in litigating for his rights with the Committee with the result that the position was changed to his detriment in the meantime by the sanctioning of a scheme under section 192 of the Act. In view of the conduct of the Committee, I leave the parties to bear their own costs. The decision will be communicated to parties or their counsel. K.M. A. Appeal dismissed.