Published on: 8 August 2023 at 14:08 IST
Court: High Court of Madras
Citation: AMKK Thrupuvanam v. Vairam (2012)
Honourable High Court of Madras has held that a Decree of Mandatory Injunction under the provision of Section 39 of the Specific Relief Act, 1963 can only be granted only when the Decree is capable of being executed. It is held that the prayer of the Civil Suit must be precise, clear and capable of being executed by the Hon’ble Court, else the Civil Suit is rendered Defective in Default.
18. As per Order 7, Rule 3 of the Code of Civil Procedure, 1908 if a Suit has been instituted in respect of an immovable property the concerned Plaint should contain necessary description so as to identify the same and further as per Section 39 of the Specific Relief Act, 1963 a decree of mandatory injunction should be granted only when the same is capable of being executed. In the instant case, as stated in many places, no proper description has been given with regard to the alleged construction. To put it in short, in the present case only the alleged construction is the suit property. But in the plaint, it has been simply mentioned three survey numbers and its total extent, without mentioning the construction alleged to have been put up by the Defendants 1 to 4.
Therefore, it is easily discernible that the Plaint filed in Original Suit No. 4 of 2004 does not contain proper description of suit property as contemplated under Order 7, Rule 3 of the Code of Civil Procedure, 1908. By way of eschewing the defects which are in existence in the Plaint, even if a decree of mandatory injunction is granted in favour of the Appellant/Plaintiff, the same cannot be executed nor enforced as contemplated under Section 39 of the Specific Relief Act, 1963. Therefore, it is quite clear that the Plaint filed in Original Suit No. 4 of 2004 is defective.
Drafted By Abhijit Mishra