SURINDER KUMAR AND ANR.versusISHWAR DAYAL AND ANR.

                        SURINDER KUMAR AND ANR.                                      A
                                         v.
                             ISHWAR DAY AL AND ANR.

                                FEBRUARY 2, 1996

                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.)                               B

            Code of Civil Procedure, 1908:

          Order 21 Rule 32-Execution of decree-Pa1ties agreeing for altered
    situation-Admission by part)r-Therefore old decree no longer in exist-           C
    eni:e-Executing Court and High Court clearly in error in directing eJZ'Cution.
    thereof

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3434 of
    1996.
                                                                                     D
         From the Judgment and Order dated 21.4.94 of the Punjab &
    Haryana High Court in C.R. No. 3801 of 1993.

            E.C. Agarwala for the Appellants.

            Satya Dev Bansal And Ms. Arnita Gupta for the Respondents.               E

            The following Order of the Court was delivered :

            Leave granted.
                                                                                     F

-         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 G
    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 construct straight wall. The respondent in the
    cross-examination had admitted that the wall AB is 9" in width. The spot H
                                         87
    88                    SUPREME COURT REPORTS                  (1996] 2 S.C.R.

A   wall FG is also 9" in width. The house was constructed by Surider 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
B   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.
c
          The appellant 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
D   now the window is admittedly opened. It would appear that it 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 pc;rpetual injunction has been
    passed, has had an opportunity of obeying the decree and has wilfully failed
E   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
F   laid under Order 21 Rule 32, CPC is unenforceable and cannot be ex-
    ecuted.

          The courts below, therefore, were wrong in proceeding under Order
    21 Rule 32 CPC to execute decree which did not exist. It is contended by
G   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 in admittedly of 1-1/2' width and
H   the new w~ll with only 9" width, the appellants have reduced the width of
     /.
                             SURINDER KR. v. ISHWAR DAYAL                     89

          their wall and opened the window in their own land for enjoyment of A
          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.
                                                                                   B
          G.N.                                                   Appeal allowed.




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