Sandeep V Marne, J.

[1] Applicants have filed this Revision Application challenging the order dated 17 March 2023 passed by the Executing Court rejecting their applications at Exhibits-83 and 85 filed for issuance of possession warrant for remaining area of the suit premises. With rejection of applications for issuance of fresh possession warrants, the Executing Court has disposed of Execution Application No. 264/2010 holding that the decree in L.E. & C. Suit No.499/545 of 1987 is fully satisfied.

[2] Briefly stated, facts of the case are that Petitioner No.1 is an Association of Persons and has been established as a Club in/or about 1717. Petitioner-Club is a licensee in respect of several pieces and portions of land situated at Tulshiwadi, Tardeo, Mumbai by virtue of Indentures of Lease dated 26 June 1923, 17 January 1933, 30 June 1937 and 27 December 1940 etc. According to Petitioner-Club, the land described as Plot No. A in the plan annexed to the Indenture of Lease dated 30 June 1937 is also demised in its favour. After formation of Municipal Corporation of Greater Mumbai, Petitioner-Club has become the lessee of the Municipal Corporation. It claims that the land demised to at southernmost corner of Plot No. A was used by it for putting up small huts for accommodating some of the employees as servant quarters. That original Defendant was employed to work as Kamal in the Club in the year 1958, who was promoted to the post of Head Attendant of the Club's swimming pool and on account of the nature of duties, he was allotted to occupy one of the huts in the said servant quarters located on southernmost corner of Plot No. A demarcated in green shading. Original Defendant resigned from services of the Club on 20 January 1986 w.e.f. 1 February 1986 but did not vacate the hut in his occupation. Plaintiff-Club accordingly filed L. E. & C. Suit No.499/545 of 1987 in the Court of Small Causes at Mumbai seeking ejectment of the Defendant who are legal heirs of the original employee of the Club. In the Plaint, suit premises were described as a hut in the servant quarters situated in southernmost corner of Plot-A demarcated in green shading on plan attached as Exhibit-A to the plaint.

[3] Original Defendant/his heirs filed their Written Statement raising objection about lack of authority of Plaintiff's Trustees to file the suit without sanction from the members of the Club. They claimed that the suit premises were erroneously described and that the premises in their possession in fact comprised of several pucca structures comprising Dutta Mandir, durbar place, dhuni place, two rooms including a tea stall, etc. which were allegedly constructed by the original Defendant, who had renounced the worldly affairs and had become a Sanyasi. It was claimed that construction of the temple was with approval of the then trustees of the Club. They also questioned jurisdiction of the Small Causes Court to entertain the suit. The Small Causes Court proceeded to dismiss the suit by judgment and decree dated 29 July 2004. Aggrieved by the decree passed by the Small Causes Court, Plaintiffs filed Appeal No.798/2004 before the Appellate Bench of the Small Causes Court. The Appeal came to be partly allowed by judgment and decree dated 30 November 2009. The suit was partly decreed and Defendants were directed to deliver vacant and peaceful possession of the suit premises to the Plaintiff in addition to compensation of Rs.5700/- as well direction to conduct enquiry into mesne profits. Defendants filed Civil Revision Application No.101/2010 challenging the eviction decree passed by the Appellate Court. The Revision Application was however dismissed by the Single Judge of this Court on 5 April 2010.

[4] In the above background, Plaintiff filed Execution Application No.264/2010 before the Small Causes Court for execution of the decree of the Appellate Court dated 30 November 2009. The Executing Court issued possession warrant by order dated 24 January 2011, which was challenged by the Defendant-Judgment Debtors before the Appellate Bench of the Small Causes Court in Revision Application No.123/2012. Since Revision was dismissed, Writ Petition No.6829/2012 was filed before this Court challenging the order issuing the possession warrant. It was urged before this Court that the Bailiff did not notice any hut at the location and instead noticed the presence of a temple which was being visited by several devotees. The order was also challenged on the ground of improper description of the suit property. This Court however dismissed Writ Petition No.6829/2012 by order dated 25 November 2013. Special Leave Petition No. 7169/2014 preferred before the Apex Court challenging the order dated 25 November 2013 was dismissed by order dated 14 July 2014. When Bailiff attempted to execute the decree, he reported obstruction by third parties. The Executing Court passed order dated 22 July 2015 reissuing the warrant of possession with certain directions to the Bailiff. Third parties filed M.A.R.J.I. Application No. 526/2015 presenting obstruction to execution of the decree, which was dismissed on 31 October 2015. It appears that the Bailiff executed the decree and handed possession of the temple and tomb to the Plaintiff-Club. When the Plaintiff-Club made attempts to take possession of the balance portion of the land indicated in green shading to the suit-map, Judgment Debtors opposed the same claiming that the balance portion of land and structures (other than the one already handed over to Plaintiff) did not form part of suit premises and accordingly filed application at Exhibit-54 seeking appointment of City Survey Officer for carrying out demarcation. Accordingly, the Executing Court passed order dated 30 January 2018 appointing Assistant Superintendent-cum-City Survey Officer as Court Commissioner to visit the suit property alongwith plan and map annexed to the plaint and to verify, inspect and report about exact location of the suit premises as per the said plan. Accordingly, City Survey Officer conducted site inspection and gave report dated 16 May 2018 indicating the location of the suit premises as per the plan annexed to the plaint. The City Survey Officer's report gave an impression as if the entire land indicated in green shading in the suit-map formed part of the suit premises.

[5] The Defendants-Judgment Debtors got aggrieved by the Court Commissioner's Report and filed application at Exhibit-61 seeking redirection to the Court Commissioner to conduct fresh inspection of the suit property on the ground that the City Survey Officer did not conduct inspection by taking alongwith him the plan attached to the plaint. The application was rejected by the Executing Court by order dated 20 October 2018. Revision Application No. 494/2018 filed challenging the order dated 20 October 2018 was dismissed by the Appellate Bench of the Small Causes Court by order dated 28 November 2019. Defendants-Judgment Debtors filed Writ Petition No.463/2020 in this Court challenging the orders passed by the Executing Court on 20 October 2018 and Revisionary Court on 28 November 2019. This Court allowed the Petition by directing the City Survey Officer to comply with the order dated 30 January 2018 passed on application at Exhibit-54 in its proper letter and spirit by conducting inspection with reference to the plaint and the map attached thereto. Accordingly, the City Survey Officer/Court Commissioner conducted fresh inspection and measurements and submitted report dated 29 October 2021 indicating therein the structures standing on the land indicated in green shading in the suit-map.

[6] After receipt of the second report of the Court Commissioner/City Survey Officer dated 29 October 2021, Plaintiff-Club filed application at Exhibit-83 for re-issuance of warrant of possession for handing over possession of the entire property described in the plan prepared by the City Survey Officer. It appears that a supplementary application at Exhibit-85 was also filed for seeking possession of the land and premises admeasuring 24,380.46 sq.ft. equivalent to 2265 sq.mtrs. as indicated in its Architect's report.

[7] The applications at Exhibits-83 and 85 are however rejected by the learned Executing Court by the impugned order dated 17 March 2023 holding that the prayer made by the Plaintiff for recovery of possession of the property did not match with the property described in the plaint. The Executing Court accordingly held that decree has fully been executed on 22 December 2015 and nothing remained to be executed and accordingly disposed of the Execution Application No. 264/2010. Plaintiff-Club has filed the present Revision Application challenging the order dated 17 March 2023.

[8] I have heard Mr. Shah, the learned counsel appearing for the Revision Applicant, who would submit that the Executing Court has erred in disposing off the execution proceedings without appreciating the fact that the possession of the entire suit premises has not yet been recovered by the Plaintiff-Club. He would take me through para-5 of the plaint which describes the suit premises by indicating its location on the plan annexed with the plaint. He would submit that the suit was filed in respect of the entire land shaded by green colour which formed part of the plaint and that therefore the Plaintiff-Club is entitled to recover possession of the entire property shaded in green colour and not just the temple and tomb, possession of which is handed over to the Plaintiff-Club in pursuance of the Bailiff Report dated 22 December 2015. He would submit that the Defendants-Judgment Debtors invited order of the Executing Court dated 30 January 2018 by filing application at Exhibit-54 and got Court Commissioner/City Survey Officer appointed for identification of the suit property at the location and therefore the report prepared by the City Survey Officer binds them and they cannot take a volte-face and contend that the suit premises did not include vacant land surrendering the temple and tomb or any additional structure apart from the one which is already recovered as per Bailiff Report dated 22 December 2015. He would submit that the Executing Court has erroneously gone behind the decree and considered older and somehow obsolete documents such as plaint, decree dated 30 November 2009 and Bailiff Report dated 22 December 2015 by ignoring the orders appointing City Survey Officer, as well as reports prepared identifying the suit premises at the location. That the principle of res judicata would estop the Judgment Debtors from questioning the identity of the suit premises. That the very same point was sought to be raised in application at Exhibit-54 which was dismissed by the Executing Court by order dated 30 January 2018. Mr. Shah would therefore submit that the execution proceedings cannot be closed till Plaintiff-Club recovers possession of the entire suit premises as demarcated in the report of the City Survey Officer. He would accordingly pray for setting aside the impugned order dated 17 March 2023.

[9] The Revision Application is opposed by Mr. Mahadik, the learned counsel appearing for Respondent Nos.1 to 4-Judgment Debtors. He would object to maintainability of the Revision Application submitting that the present Revision Application cannot be maintained as the impugned order dated 17 March 2023 is passed on interlocutory applications filed by the Plaintiffs-Decree Holders. He would submit that the Executing Court has rightly recorded that the decree has been fully satisfied and that nothing now remains to be executed. He would submit that description of the suit property in the plaint itself was faulty and Plaintiff-Club must suffer the consequences of erroneous description of the suit property in the plaint. He would rely upon the provisions of Order VII Rule 3 of the Code of Civil Procedure,1908 in support of his contention that it is the Plaintiff's duty to describe the suit property accurately. That the suit property was described as hut while filing suit. That the hut was later converted into temple, possession whereof has already been secured by the Plaintiff-Club. That description of the suit premises nowhere included any land over and above the then existing hut. He would submit that the suit was filed seeking eviction of the Defendant describing him to be the employee of the Club occupying only one servant quarter in the form of a hut and now the Plaintiff-Club is attempting to enlarge the scope of the decree by seeking to recover additional property which never formed part of the suit. Mr. Shah would also invite my attention to the execution application, in which the mode of execution was suggested as issuance of possession warrant in respect of the hut in southernmost corner of the plot. That since the execution application itself was restricted to only hut, there is no question of Plaintiff now seeking to enlarge the scope of its execution proceedings by seeking to recover something over and above the premises described in the plaint and the execution application. That the Executing Court has rightly appreciated the position that the decree has already been satisfied by the Bailiff Report dated 22 December 2015. That the enquiry contemplated under the provisions of Order XXI Rule 35 was otherwise inserted which the Plaintiff did not apply for. That therefore its execution application has rightly been closed. He would pray for dismissal of the Revision Application.

[10] Mr. Gharat, the learned counsel appearing for Respondent Nos.5 to 9 adopts the submissions of Mr. Mahadik and would pray for dismissal of the Revision Application.

[11] Rival contentions of the parties now fall for my consideration.

[12] The short issue that is raised in the present Revision Application is about correctness of order passed by the Executing Court on 17 March 2023 closing the eviction proceedings by recording that the decree has been fully satisfied. Before going into the merits of the issue, it would be necessary to deal with the objection of maintainability of the Revision Application. By the impugned order dated 17 March 2023, the Executing Court has not only dismissed the applications at Exhibits-83 and 85 preferred by the Plaintiff-Club but it has also closed the execution proceedings holding that the decree is satisfied. It therefore cannot be contended that the order dated 17 March 2023 is an interlocutory order as the same has the result of finally deciding the rights between the parties qua the property in question. On account of closure of the execution proceedings, the possession of remaining portion of the land, which the Plaintiff believes to be forming part of the suit premises, will never be delivered. Therefore, qua the alleged right of the Plaintiff to secure entire possession of the suit premises, the impugned order dated 17 March 2023 amounts to final disposal of the proceedings. As provided under Order XXI Rule 101 of the Code, all questions arising between the parties to a proceeding on application under Rule 97 or Rule 99 and relevant to the adjudication of the application are to be determined by the Executing Court while deciding the application and not by a separate suit. The provisions of Section 115 of the Code vests revisionary jurisdiction in a High Court to vary or reverse any order passed in suit or other proceedings where such order has the effect of final disposal of the suit or the proceedings. In my view, the execution proceedings would be included in the expression 'other proceedings' and therefor since the order dated 17 March 2023 has the effect of final disposal of the execution application, in my view, the present Revision Application would be maintainable. Even otherwise, the objection about maintainability of the Revision Application raised by Mr. Mahadik is mere in the nature of choice of remedy to be adopted against the order dated 17 January 2023. Mr. Mahadik did attempt to suggest that instead of the Revision Application, Plaintiff-Club ought to have filed a Writ Petition before this Court. Thus jurisdiction of this Court to deal with the issue of correctness of order dated 17 March 2023 is not really disputed by Mr. Mahadik nor has he suggested that any alternate remedy is available to the Plaintiff-Club to challenge the said order. Since this Court could have otherwise permitted conversion of the Revision Application into Writ Petition, which according to Mr. Mahadik would be the appropriate remedy, it is not necessary to delve deeper into the objection of maintainability and it would be appropriate to instead proceed into the merits of the case.

[13] As observed above, the short issue that arises for consideration in the present proceedings is whether the eviction decree passed by the Appellate Bench of the Small Causes Court on 30 November 2009 has been fully satisfied or not. It appears that initially L. E. & C. Suit No.499/545 of 1987 was dismissed by the Trial Court on account of technicalities such as authority of the trustees to maintain the suit. The Appellate Court reversed the decree of the Trial Court and partly decreed the suit in terms of the following order :

Appeal No. 798 of 2004 is hereby partly allowed and decree passed in LE & C Suit No. 499/545 of 1987 is modified and substituted as said suit is partly decreed and defendants shall deliver vacant and peaceful possession of the suit premises to the plaintiffs on or before 01.03.2010, and they shall pay compensation of Rs.5700/- and inquiry regarding mesne profits from the date of suit till recovery of possession of the suit premises in accordance with law shall be held under Order 20 Rule 12(1)(c) of the C.P.C.

However appeal and the said suit on rest of the counts partly stand dismissed.

Decree be drawn up, accordingly.

[14] It is the description of the 'suit property', which is the hotbed of controversy between the parties. It would therefore be relevant to take into consideration the description of the suit property in the plaint. In para-5 of the plaint, Plaintiff pleaded as under:

5. The Plaintiffs submit that Org. Defendant was employed to work as a "Kamal" in the club in the year 1958. The Plaintiffs say that thereafter the Or. Defendant was promoted to the Post of Head Attendant of the Club's Swimming Pool. Inasmuch as the Org. Defendant had to attend to his duties in shifts at times early in the morning and at times has to remain on duty till late in the evening, the Org. Defendant requested the Plaintiffs to allot to him one of the huts in the Servants' Quarters, described hereinabove, in order to facilitate his working at the Club during his duty hours. Accordingly, the Org. Defendant was allotted one hut in the said servant's quarter, situated in the southernmost corner of Plot A demarcated in green shading on Exhibit "A" hereto, and which hut for brevity sake is hereinafter called the "suit premises."

(emphasis and underlining added)

[15] The fact that there were other huts in the land indicated in green shading is further clear from pleadings in Para 8 of the Plaint, which read thus:

The Plaintiffs submit that thereafter the Plaintiffs received from their other employees occupying the neighbouring huts in the Plaintiffs' servant quarters, oral and written complaints that the Org. Defendant was creating considerable nuisance and annoyance to them and constantly quarreling and threatening them and collecting number of persons near his hut, which he called his durbar'

[16] Thus, the Plaint proceeded on specific pleadings that there were several huts in the land indicated in green shading and that the original Defendant was occupying only one such hut. Similarly, in para-16(a), Plaintiff prayed for following relief :

16. The Plaintiffs, therefore, pray:

(a) that the defendants be decreed and ordered to quite and vacate and to remove himself, his family members and to remove himself, his family members and his belongings from, and hand over vacant possession of the said hut in the servant's quarters, situated in the southernmost corner of plot a in the leased property of the plaintiffs and being opposite the R.T.O. at Tulsi Wadi, Tardeo, Bombay 34, and shaded in green colour in plan annexed hereto.

(emphasis added)

[17] Thus, the Plaintiff described the suit premises as 'one hut in servant quarters' situated in southernmost corner of Plot-A demarcated in green shading on Exhibit-A. In prayer clause-16(a), Plaintiff sought recovery of possession of said hut in the servant quarters situated in the southernmost corner of Plot-A. While the Defendants contend that the suit premises were described as 'one hut in the servants quarters', according to the Plaintiff-Club the suit was filed in respect of the entire land indicated in green shading on plan at Exhibit-A. Alongwith Exhibit-A to the plaint, following plan was appended:

[18] Plaintiff-Club believes that everything that was situated on the land demarcated in green shading of Plan at Exhibit-A became the suit property. However, careful perusal of the pleadings in para-5 read with prayer in para-16(a) would indicate that the suit was filed for ejectment of the original Defendant from only the hut located in the servant quarters. Reference to the land/plot demarcation in green shading on the plan appended to the plaint was essentially to reflect the exact part of larger land leased out to the Club where the hut was located. The suit was never filed for recovery of possession of the land indicated in green shading on the plan. This is more apparent from the pleadings in para-4 of the plaint which reads thus :

4. The Plaintiffs submit that a small portion of land demised to the Club and being in the southernmost corner of plot A, shown in the Plan annexed hereto by green shading has been used by the Plaintiffs by putting up small huts to accommodate some of its employees. The Plaintiffs have described these huts as Servants' quarters. The Plaintiffs submit that the said huts have been allotted to the employees of the club, such as Malis, Peons, Ramoshis, etc. In order that they may be better able to perform their duties by attending to their duties at the club early in the morning onwards and by being available whenever required.

(emphasis and underlining added)

[19] Thus, the plan at Exhibit-A to the plaint was appended only for the purpose of identification of small portion of the land demised to the club in the southernmost corner of Plot-A on which several smaller huts were apparently erected to accommodate employees of the Club. Para-4 of the plaint indicates that the original Defendant was not the only person occupying all huts located on the land indicated in green shading on the plan and number of employees employed as Malis, Peons, Ramoshis were occupying the said huts. Plaintiffs sued the Original Defendant for recovery of possession of the hut on the ground that he resigned from service by letter dated 21 January 1986 and ceased to be in services of the Club. The suit was thus premised on pleadings that the Original Defendant was allotted the concerned hut as a condition of service and since his service came to an end by his resignation, he had no right to remain in possession of the hut. Thus what was sought to be recovered was not the entire land demarcated in green shading on the plan appended as Exhibit-A to the plaint. The said land had numerous huts thereon occupied by several other employees who continued in the services of the Plaintiff's club at the time of filing of the suit and against whom no decree for eviction was sought. The decree for eviction was sought only against the Original Defendant, that too in respect of the hut in his occupation. If any doubt existed, the same got clarified with pleading that 'which hut for brevity sake is hereinafter called 'the suit premises'. Thus, the suit premises described in the plaint comprised of only hut and not the entire land indicated in green shading on plan appended at Exhibit-A to the plaint. Even prayer clause-16(a) sought possession of 'the said hut in the servants quarters'. The land indicated in green shading on plan at Exhibit-A was only for the purpose of identifying the exact location of the hut. Plaintiff never intended to seek eviction of all hutment occupiers situated on the said land. If any further clarity was needed about the exact premises in respect of which the suit was filed, the pleadings in the execution application provides further guidance in this regard. In the execution application, Plaintiff-Club sought following mode in which assistance of the Executing Court was required :

Be pleased to issue Warrant of Possession against the Defendants in respect of the suit premises viz. hut in the servants' quaters, situated in the southernmost corner of plot a in the leased property of the plaintiffs and being opposite the R.T.O. at Tulsi Wadi, Tardeo, Bombay 400 034.

(emphasis added)

[20] Thus, even in the execution application filed as late as on 28 June 2010, issuance of possession warrant was sought only in respect of the 'hut in the servants' quarters'.

[21] It appears that by the time the Bailiff approached the site for execution of the decree, he could not locate the hut and instead noticed that a temple and tomb existed at the site and the devotees refused to handover possession thereof to the Bailiff. Plaintiff accordingly filed application at Exhibit-34 for re-issuance of possession warrant and executing Court passed order dated 22 July 2012 directing re-issuance of warrant of possession and its execution with police force. It appears that the application filed by the Obstructionists (Respondent Nos. 5 to 9) obstructing handing over of possession of temple and tomb was also rejected by order dated 31 October 2015. In the light of this position, the Bailiff executed the decree on 22 December 2015 and Bailiff's report reads thus:

As per order of the Hon. Court, I went along with Dy. Secretary of the Plaintiff's, Mr.Gagan Singh Samant at Tardeo Police Station, Mumbai 400034 on 22.12.2015 at shout 10.40 am and I met Sr. Inspector of Police Mr.Nagesh Jadhav and explained him the purpose of my visit. Then taken over by me PSI Mr.Sahadu Varal and Police Officer Mr.Tanaji Ramchandra Karpe and PI Mr. Abhyankar and other police sub-inspectors, Gents Constables & Women Police Constables vide diary no.30 at about 10.50am and I went along with them to execute Writ of Warrant of possession against the defendants or any other person found in the suit premises viz the said a hut in the servants quarters situated at southern corner of the Plot of the leased property of the plaintiff and being opposite to RTO at Tulsiwadi, Tardeo 400 034 on 22nd December 2015 in between 11.30am to 12.50pm.

When I reached at the above said suit premises, comprising of one temple and one Tomb (Samadhi) there and defendant No.3 Mr.Siddharth Akhade and his wife Mrs. Vidhya Sudhartha Akhade were present therein along with Mr.Sanjay Salve, Mr.Somnath Shinde. After I had explained them the purpose of my visit and contents of Writ of Warrant of Possession. Thereafter, they informed me that their advocate has made an application in the Hon. Appeal Court No. 3 for getting the stay and requested me to wait for a while.

In the meanwhile, I started to make the inventory of the articles and goods which were lying therein. After completing my inventory and waiting for one & half hour, I confirmed that Hon. Appeal Court No.3 has not passed any stay order in the said matter.

Thereafter, Defendant No.3 and his wife obeyed the court order and removed themselves from the suit premises and handed over the peaceful possession of the suit premises to me but the same did not give in writing to that effect.

The Inventory articles and goods handed over to the Dy.Secretary of the Plaintiff, Mr. Gagan Singh Samant for keeping in his safe custody and obtained his acknowledgement on the copy of inventory for the receipt is enclosed herewith.

So by virtue of the Writ of Warrant of possession, I this day delivered peaceful possession of the suit premises i.e. the said a hut in the servants quarters situated at southern most corner of Plot of the leased property of the plaintiff and being opposite to RTO at Tulsiwadi, Tardeo 400 034 to the Dy. Secretary of the plaintiff Mr. Gagan Singh Samant along with all articles and goods as per copy of the inventory and obtained his endorsement to that effect on the copy of Writ of Warrant of Possession and left the cost of W.P. by the Dy Secretary of the Plaintiff Mr.Gagan Singh Samant.

After completing of the said work, Dy Secretary of the plaintiff Mr. Gagan Singh Samant informed that during the pendency of implementation of possession warrant, defendants have erected a room (hut) duly carved a portion of the temple on the southern/western side of the Temple, approximately 10' 6', which is occupied and possessed by defendants or their associates. Mr. Samant further informed and pointed to me that one side of the wall is common for the temple and the said room (hut).

Then I told to the Dy.Secretary of the Plaintiff Mr. Gagan Singh Samant that the said room (hut) is not mentioned in the proceedings of the suit premises. The Suit premises comprised of only a temple and (tomb) Samadhi which was already handed over to the Plaintiff's.

So I have noted the aforesaid facts at Tardeo Police Station vide return diary no. 43 at about 1.05pm.

Hence, the Writ of Warrant of Possession is returned executed.

[22] Thus, though the suit was filed seeking possession of the hut in the servants quarters, Bailiff actually recovered possession of temple and tomb on account of Plaintiff-Club's case that the original Defendant had changed the nature of the hut to that of a temple. Bailiff accordingly handed over possession of temple and tomb to the Plaintiff. Therefore, though Plaintiff never took care of amending the plaint by correcting/updating description of the suit premises, which had undergone change from a mere hut in the servants quarters to a temple and tomb, the Bailiff still executed the decree on 22 December 2015 by handing over possession of temple and tomb to Plaintiff-club.

[23] After recovery of the structure in the form of temple and tomb, the Plaintiff apparently continued pressing the execution application possibly for recovery of vacant land around the temple and tomb, to be precise, the land indicated in green shading in the Map appended to the plaint. However, as observed above, the Map at Exhibit-A to the plaint was filed only for the purpose of indicating the location of the hut occupied by the Original Defendant. As observed above, the Original Defendant was not the only person occupying the hut and apparently there were several huts on the land indicated in green shading as per the pleadings in para-4 of the plaint. It therefore cannot be contended that the suit premises covered the entire land indicated in green shading. Therefore, after recovery of possession of temple and tomb (which possibly were built in place of hut) vide Bailiff's report dated 22 December 2015, the execution proceedings ordinarily ought to have come to an end. Why the execution proceedings were continued after Bailiff's Report dated 22 December 2015 is perplexing. In such continued execution proceedings, Defendants-Judgment Debtors unnecessarily created a complication by filing application at Exhibit-54. That application has not been placed on record by the Plaintiff-Club, but it appears that by the application at Exhibit-54, the Judgment Debtors-Defendant No.3 sought appointment of Court Commissioner for finding out exact location of the suit premises as described in the plaint. From reply dated 10 March 2022 filed by Defendant No. 3 it appears that the said application was filed to complain about Plaintiff-Club securing possession of more premises and land than the one described in the Plaint. According to Defendant No. 3 the size of the original patra hut was only 10ft x 10 ft or maximum of 10ft x 15ft, whereas possession of temple admeasuring 20 ft x 30 ft and tomb admeasuring 40 ft x 80 ft was illegally obtained by Plaintiff vide Bailiff Report. Therefore, the said application was in fact opposed by the Plaintiff-Club. The Executing Court allowed the said application at Exhibit-54 by passing following order on 30 January 2018 :

1. Plaintiffs/decree holders have filed present Execution Proceeding to execute the decree. During the execution proceeding, there was a dispute between plaintiffs, defendants and third parties in respect of exact location of suit premises on the site as mentioned in the Plaint and plaint map with green shaded portion. Therefore, in order to demarcate the exact location of green shaded portion as mentioned in Plaint Map on the site, it is necessary to undertake joint measurement of green shaded portion mentioned in the plaint map in presence of plaintiffs and defendants by a neutral person i.e. City Survey Officer, so that it will enable this Court to execute the decree.

2. In view of this background, defendant No.3 has filed the present application and Plaintiffs have filed their reply at Exh.55. If joint measurement of green shaded portion as mentioned in the plaint map is undertaken by the neutral City Survey Officer, no prejudice would be caused to either of the parties. On the contrary, it will be an assistance to the Court. Hence, following order.

ORDER

1. Assistant Superintendent-cum-City Survey Officer of Office of Old Custom House, Fort, Mumbai is hereby appointed as a Court Commissioner to visit the suit property along with Plaint and the Map annexed to the Plaint and verify, inspect and give report about exact location of the suit premises as per the Plaint and Plan annexed to the plaint and submit his report at the earliest.

2. Court Commissioner's fees shall be borne by Plaintiffs and Defendants equally.

3. Court Commissioner to inspect the suit premises after giving prior notice to the Plaintiffs and Defendants.

4. Issue writ accordingly.

[24] In my view, this mistake committed by Defendant No.3 in filing application at Exhibit-54 is something which Plaintiff-Club sought to take undue benefit. Otherwise, Plaintiff-Club never wanted site inspection or demarcation of the suit property at the site. In pursuance of order dated 30 January 2018, the City Survey Officer, acting as Court Commissioner, gave report dated 16 May 2018. In his report, the Court Commissioner indicated that there was temple, pucca structure and tin shed and that the temple and vacant space in front of temple were closed by a compound. The Map prepared by the City Survey Officer/Court Commissioner demarcating the entire land by green line indicating that the same was 'suit property'.

[25] Defendant No.3 was not happy with the indication of the entire land in demarcated green line by the City Survey Officer and accordingly filed application at Exhibit-61 seeking re-ascertainment of the exact suit property by paying fresh visit at the site alongwith plan and map annexed with the plaint. The said application at Exhibit-61 was turned down by the Executing Court by order dated 20 October 2018. The Revision preferred by Defendant No.3 was rejected by the Appellate Bench by order dated 28 November 2019. Defendant No.3 thereafter filed Writ Petition No.463/2020 in which this Court passed following order :

1. Heard Mr. Chavan, learned counsel for Petitioners and Mr. Shah, learned counsel for Respondent No.6. Perused record.

2. The record clearly indicates that, the Assistant Superintendent-Cum-City Survey Officer, attached to the Office of Old Custom House, Fort, Mumbai has erred in reading Order dated 30th January 2018 passed below Exh.54 in Execution Application No.264 of 2010 and has not complied with, in its proper letter and spirit. The learned Judge of the Trial Court in para No.7 of the impugned Order dated 20th October, 2018, has observed that, the concerned Government Officer has not mentioned that, he visited the suit property along with plaint and the map annexed thereto and also has not mentioned in its report dated 16th May, 2018 the exact location of the suit premises as per the plaint and the plan annexed thereto. That, the said things are missing in the report from the Court Commissioner dated 16th May, 2018.

3. As noted earlier, the said Government Officer/Court Commissioner was appointed with a specific direction by the Trial Court as mentioned in the operative part of para No.1 of Order dated 30th January, 2018. Therefore it was expected from the said Officer to visit the suit premises along with the plaint and the map annexed thereto in order to demarcate the exact location of green shaded portion as mentioned in the plaint map on the site. For want of specific compliance of the said Order, it appears to this Court that, the Trial Court may perhaps not able to get proper assistance of the said report submitted by the Court Commissioner.

4. In view thereof, the impugned Order dated 20th October, 2018 passed below Exh.61 in Execution Application No.264 of 2010 is hereby set aside and the Application filed by the Petitioners below Exh.61 is allowed.

5. The Assistant Superintendent-Cum-City Survey Officer, attached to the Office of Old Custom House, Fort, Mumbai is hereby directed to comply with the Order dated 30th January, 2018 passed below Exh.54 in its proper letter and spirit without, keeping any ambiguity while submitting its report afresh before the Trial Court.

6. As noted above, the Application filed by the Petitioners below Exh.61 is hereby allowed, the Petitioners will bear the cost of fresh survey been conducted by the concerned Officer. The concerned Officer is directed to submit its report within a period of four weeks from the date of receipt of necessary legal charges for conducting survey from the Petitioners. Petitioners are directed to deposit the necessary charges along with copy of the present Order in the Office of the concerned Officer within a period of three weeks from today.

7. Petition is allowed in the aforesaid terms.

8. All the concerned to act on the basis of the authenticated copy of this Order.

[26] Thus, by order dated 24 August 2021, this Court directed the City Survey Officer /Court Commissioner to implement the order dated 30 January 2018 in its letter and spirit without keeping any ambiguity by making a fresh visit at the site alongwith the plan and map annexed thereto in order to demarcate the exact portion of green shaded portion mentioned in the said map. The City Survey Officer/Court Commissioner has once again carried out the site inspection and prepared a fresh map. In the fresh map so prepared, the City Survey Officer has not demarcated the green shaded portion on the suit map but has merely indicated existence of the structures at the site, compound wall, tin compound and barbed wire fencing.

[27] After receipt of fresh Court Commissioner's Report dated 29 October 2021, Plaintiff-Club filed application at Exhibit-83 containing following prayers :

29. In view of the above, I pray that for the effective execution and implementation of the Decree dated 30th November 2009, passed in favour of the Plaintiffs and against the Defendants in Appeal No. 798 of 2004, the Warrant of Possession dated 12th October 2010, any other Warrant of Possession issued or re-issued hereafter and the earlier Orders passed by this Hon'ble Court, this Hon'ble Court may

a. permit service of this Application by the Plaintiffs' Advocate upon the respective Advocates for the Defendants and Respondents (the alleged devotees)

b. expeditiously hear and dispose of this Application as a time-bound matter

c. re-issue the warrant of possession or issue a fresh warrant of possession, inter alia, to authorise, empower, enable and permit the Plaintiffs, the Club, their staff and the concerned Bailiff of this Hon'ble Court, if need be,

(i) to open or break open the lock/s, if any, found on the door/s of the structures on/in the balance part of the suit premises,

(ii) with the help of the concerned Police authorities, to take immediate, actual, physical, forcible and vacant possession of the balance part of the suit premises, including the structures thereon

(iii) to forcibly evict, remove, expel, eject or push out the Defendants or any other person/s, if he or she or they refuse/s to vacate the balance part of the suit premises and the structures thereon

(iv) to take all necessary steps as may be required to effectively implement and execute the said Warrant/s and to deliver to the Plaintiffs, physical possession of the balance part of the suit premises and the structures thereon

d. summon and/or give appropriate directions to either or both of the concerned Surveyors or to their office, to mention the measurements in their respective maps, fulfil the deficiencies, if any and/or plug the loopholes, if any and/or to do the needful and/or do everything necessary to enable this Hon'ble Court to minimise or eliminate the multiplicity of proceedings and conclude the present execution proceedings once and for all.

e. grant injunction, restraining the Defendants and the alleged devotees and any other person except the Plaintiffs, the Club, its staff, its security personnel and the police, etc. from entering the balance part of the suit premises and the structures thereon

f. permit the Plaintiffs and the Club to clean the suit premises and the structures thereon and use the same for the Club's activities or any other purpose thought fit by the Club and its management

g. permit the Plaintiffs and the Club to demolish all the structures in the suit premises and the structures thereon, including the Temple and samadhi and use the land for the Club's activities or any other purpose thought fit by the Club and its management

h. permit the Plaintiffs and the Club to take the help of the police for one or more of the aforesaid or any other or further relief/s, as and when granted by this Hon'ble Court

i. order the Senior Inspector of Police, Tardeo Police Station, Mumbai, to render the necessary police help and assistance to the Plaintiffs, the Club, their staff and the Bailiff of this Hon'ble Court, as and when called upon from time to time by any of them for the implementation of the Order granted by this Hon'ble Court on this Application in terms of the aforesaid prayers or otherwise

j. grant such other and further reliefs, as the nature and circumstances of the case may require

k. grant the costs of this Application to the Plaintiffs

(emphasis added)

[28] Thus though the main purpose behind filing Application at Exhibit-83 was to secure possession of balance portion of land along with structures based on the reports of the Court Commissioner/City Survey Officer, Plaintiff-Club added further prayers for permission to demolish structures, clean them, use for club's purposes, etc. During pendency of application at Exhibit-83, Plaintiff-Club secured Certificate dated 15 February 2022 from its own Architect-M/s. Shashi Prabhu and Associates, which certified that the area of the suit premises (in green shading on suit map) is 24,380.46 sq.ft. equivalent 2265 sq. mtrs. Certificate dated 15 February 2022 issued by Plaintiff's Architect read thus :

This is to certify that the Plot area at C.S. No 2/383, 5/383, 6/383 and 7/383 is 2,00200 sq mtrs (2154934.87 sq.ft) Tardeo, Mumbai 400034. The Suit premises is a part of the entire plot under C.S. No 7/383 (pt), as per the demarcation in the map annexed to the Report of the surveyor dated 29th October 2021 is 24,380.46 sq.ft (2265 sq.mtrs). The same is measured as per the scale stated in the said map i.e. 1:500

Yours Faithfully,

Sd/-

Shashi Prabhu

Shashi Prabhu and associates

[29] Armed with its Architect Certificate, Plaintiff-Club filed another application branding it to be 'supplementary affidavit-cum-application' at Exhibit-85, with more or less same prayers as were made in Application at Exhibit-83, but by adding the measurement of the land as 24,380.46 sq.ft./2265 sq. mtrs. Paragraph 3 and prayers in Application at Exhibit-85 read thus :

3. In connection with and continuation of the above Application dated 8th January 2022, the Plaintiffs have now obtained a new certificate dated 15th February 2022 from M/s. Shashi Prabhu And Associates, Architects, Interior Designers and Project Management Consultants, Mumbai, certifying, inter alia, that the area of the Suit premises within C.S. No. 7/383, Tardeo, Mumbai-400034, is 244,380.46 sq.ft., equivalent to 2,265 sq.mtrs., as per the demarcation in the map annexed to the second or subsequent Surveyor's Report dated 29th October 2021, which map and Report are duly exhibited to the above Application and the same is measured as per the scale mentioned in the said map, i.e. 1:500. Hereto annexed and marked Exhibit '3' is the said certificate.

In view of the above, I pray that for the effective execution and implementation of the Decree dated 30th November 2009, passed inn favour of the Plaintiffs and against the Defendants in Appeal No.798 of 2004, the Warrant of Possession dated 12th October 2010, any other Warrant of Possession issued or re-issued hereafter and the earlier Orders passed by this Hon'ble Court, this Hon'ble Court may

a. expeditiously hear and dispose of this Application as a time-bound matter

b. re-issue the warrant of possession or issue a fresh warrant of possession, inter alia, to authorise, empower, enable and permit the Plaintiffs, the Club, their staff and the concerned Bailiff of this Hon'ble Court, if need be,

(i) to open or break open the lock/s, if any, found on the door/s of the structures on/in the balance part of the suit premises admeasuring 24,380.46 sq. ft., equivalent to 2,265 sq. mtrs.

(ii) with the help of the concerned Police authorities, to take immediate, actual, physical, forcible and vacant possession of the balance part of the suit premises, admeasuring 24,380.46 sq. ft., equivalent to 2,265 sq. mtrs. and also of the structures thereon

(iii) to forcibly evict, remove, expel, eject or push out the Defendants or the Respondents or other person/s, if he or she or they refuse/s to vacate the balance part of the suit premises admeasuring 24,380.46 sq. ft., equivalent to 2,265 sq. mtrs. and also the structures thereon

(iv) to take all necessary steps as may be required to effectively implement and execute the said Warrant/s and to deliver to the Plaintiffs, physical possession of the balance part of the suit premises admeasuring 24,380.46 sq. ft., equivalent to 2,265 sq. mtrs. and of the structures thereon

c. if this Hon'ble Court is not satisfied with the Certificate(certifying the area) annexed hereto, summon and/or give appropriate directions to the concerned Surveyor or to his office, to mention the measurement in his map, fulfil the deficiencies, if any and/or plug the loopholes, if any and/or to do the needful and/or do everything necessary to enable this Hon'ble Court to minimise or eliminate the multiplicity of proceedings and conclude the present execution proceedings once and for all.

d. grant injunction, restraining the Defendants, the Respondents and other person except the Plaintiffs, the Club, its staff, its security personnel and the police, etc. from entering the balance part of the suit premises admeasuring 24,380.46 sq. ft., equivalent to 2,265 sq. mtrs. and also from entering into the structures thereon

e. permit the Plaintiffs and the Club to clean the suit premises admeasuring 24,380.46 sq. ft., equivalent to 2,265 sq. mtrs. and also the structures thereon and use the same for the Club's activities or any other purpose thought fit by the Club and its management

f. permit the Plaintiffs and the Club to demolish all the structures in the suit premises admeasuring 24,380.46 sq. ft., equivalent to 2,265 sq. mtrs, including the Temple and samadhi and use the land for the Club's activities or any other purpose thought fit by the Club and its management

g. permit the Plaintiffs and the Club to take the help of the police for one or more of the aforesaid or any other or further relief/s, as and when granted by this Hon'ble Court

h. order the Senior Inspector of Police, Tardeo Police Station, Mumbai, to render the necessary police help and assistance to the Plaintiffs, the Club, their staff and the Bailiff of this Hon'ble Court, as and when called upon from time to time by any of them for the implementation of the Order granted by this Hon'ble Court on this Application in terms of the aforesaid prayers or otherwise

i. grant such other and further reliefs, as the nature and circumstances of the case may require

j. grant the costs of this Application to the Plaintiffs.

(emphasis added)

[30] This is how Plaintiff-Club filed applications at Exhibits-83 and 85 once again seeking issuance of warrant of possession for recovery of possession of the entire plot which was shaded in green colour in the suit Map. It appears that neither the application at Exhibit-83 nor the application at Exhibit-85 were based on the second report of the Court Commissioner dated 29 October 2021. Infact, the application at Exhibit-85 was based on a private Architect's report. As observed above, the second Commissioner's Report dated 29 October 2021 did not demarcate the green shaded portion of the suit map as the suit premises in any manner. This appears to be the reason why the Plaintiff-Club did not seek implementation of the second Commissioner's Report dated 29 October 2021 and sought possession of land admeasuring 24,380.48 sq.ft. based on Architect's Certificate. Thus, the scope of the decree passed in the suit filed in respect of just one hut in servant quarters was sought to be expanded to the land admeasuring 24,380.46 sq.ft. by the Plaintiff-Club. It is beyond comprehension as to how one hut can be constructed on land admeasuring 24,380.48 sq.ft. ? As observed above, the land shaded in green colour in suit map only represented the location where the suit hut was located. The suit was filed for recovery of possession of the hut and not for recovery of possession of land indicated in green shade in the suit map.

[31] The Executing Court has rightly appreciated the above position and has recorded following findings in para-5 of the order:

5. By way of present applications below Exhibit83 and 85 plaintiffs are claiming possession of remaining portion of property other than suit premises. The plaint in L.E. & C Suit No. 545 of 1987 does not contained said property as suit premises. The plaintiffs are clamming whole portion of property mentioned in green line by the Court Commissioner in its' map attached with report dated 16.05.2018. Admittedly said whole portion was not included in the plaint as suit premises and plaintiffs have not claimed the possession of whole portion of the property on which suit premises is situated or surrounding portion of suit premises in the plaint/suit. As the remaining portion claimed by the plaintiffs in present applications below Exhibit83 and 85 was not part of suit and the decree, the execution of said portion cannot be granted as prayed in the applications and applications are liable to be rejected. So also as the original decree has been fully executed on 22.12.2015, nothing remain to execute now and therefore present execution application is required to be disposed off as decree is fully satisfied. Hence the following order.

::ORDER::

1. Application below Exhibit83 and 85 are rejected with costs.

2. The Execution Application No. 264 of 2010 is disposed off as decree in LE & C Suit No. 499/545 of 1987 is fully satisfied.

[32] The Executing Court has thus rightly appreciated that the portion of the land now claimed by the Plaintiff-Club was never a part of the suit and the decree. Plaintiff-Club has already recovered possession of the Mandir and Tomb vide Bailiff's Report dated 22 December 2015. As per Plaintiff's own case in para-4 of the plaint, there were several other hutments on the land indicated in green shade in the suit map. The suit was however not filed for recovery of possession of those hutments from their occupiers. Therefore, I do not see any reason why the decree secured by the Plaintiff-Club for recovery of possession of just one hut can be used for recovery of possession of large portion of land (admeasuring 24380.48 sq. ft) for which the suit was not filed, but the land was so indicated merely for the purpose of specifying the location of the hut.

[33] Even if it is assumed that the original Defendant/his heirs expanded premises in their possession (hut) into several structures spread over land admeasuring 24 380.48 sq. ft, Plaintiff-Club ought to have amended the plaint and included the entire land and structures in the description of suit premises. There are no pleadings, no evidence and much less finding by the Appellate Court in its eviction judgment and order that the original Defendant/his heirs drove away other employees of the Club from their respective hutments, demolished them or constructed other structures thereat. Therefore, the decree secured for possession of just one hut cannot be misused by the Plaintiff-club to secure possession of land admeasuring 24,380.48 sq. ft.

[34] The conspectus of the above discussion is that the decree for possession of one hut in servant quarters located in the portion of land indicated in green shading on suit map has already been executed vide Bailiff's Report dated 22 December 2015 by securing possession of temple and tomb. For recovery of balance portion of the land with structures standing thereon, the mechanism of execution of the decree cannot be used as the decree did not cover the same. Plaintiff-Club will have to adopt necessary steps by filing appropriate proceedings for recovery of balance portion of the land and structures standing thereon. Therefore, no palpable error can be traced in the order passed by the Executing Court on 17 March 2023. The Order is unexceptionable warranting dismissal of the Revision Application. However, it is clarified that dismissal of the Revision Application shall have no effect on recovery of possession of property by Plaintiff-club vide Bailiff Report dated 22 December 2015, which has attained finality. Plaintiff-Club shall be deemed to be in possession of the entire property covered by the Bailiff Report dated 22 December 2015 and it shall be entitled to deal with the same.

[35] The Revision Application is accordingly dismissed