Bavva Singh vs Sadhu Singh

P.C. Jain, J.—Briefly the facts of this case are as follows:

On the basis of a compromise, Sadhu Singh decree-holder respondent obtained a decree against Bawa Singh judgment-debtor on 31st July, 1963, for permanent injunction to the effect that the defendant (Bawa Singh judgment-debtor) would retain the latrine and would throw its water through the Parnala shown as ''L.M.'' in plan Exhibit P. 1. The defendant (judgment-debtor) was further directed to construct a drain with its slope towards the East, so that the latrine water could flow towards that side. As the judgment debtor did not comply with the terms of the decree, Sadhu Singh decree-holder took out execution of that decree on which a Local Commissioner was appointed who after implementing the terms of the decree submitted his report on 2nd February, 1964, Exhibit D.H. 2. After some time the judgment-debtor again demolished the drain, on which the present application was filed by Sadhu Singh decree-holder under Order 21 rule 32 of the Civil Procedure Code, on 25th February, 1965, alleging that the judgment-debtor had disobeyed the injunction order by demolishing the drain. A prayer was made that the judgment-debtor be detained in civil prison on account of disobedience of the order of the Court. The application was contested by Bawa Singh on the pleas that the present application was not maintainable and that the Municipal Committee had started constructing municipal drain in the locality and in execution of that project the disputed drain was also demolished. On the pleadings of the parties, the executing Court framed the following issues:

Whether the judgment-debtor has disobeyed the injunction issued against him ?

Whether the present application does not lie ?

Relief.

The executing Court decided issues Nos. 1 and 2 against the judgment-debtor and held that the injunction order passed by the Court was intentionally flouted by him (judgment-debtor). It was directed that the property to the extent of the value of Rs. 2,000/- be attached and the drain be got constructed again at the expenses of the decree-holder and the amount be recovered from the judgment-debtor. Shri Lal Chand, Execution Clerk, was appointed Local Commissioner for the compliance of the decree. Feeling aggrieved from the judgment of the executing Court an appeal was preferred by the judgment debtor. The learned District Judge, Gurdaspur, partly allowed the appeal and the value of the property attached was reduced from Rs. 2,000/- to Rs. 200/-. It was also held that there was no need for the Local Commissioner to function for the construction of the drain as the same had now been constructed on a permanent basis by the Municipal Committee, Gurdaspur. Dissatisfied with the judgment of the learned District Judge, Bawa Singh judgment-debtor has filed Execution Second Appeal No. 677 of 1937 and Sadhu Singh has filed Execution Se:ond Appeal No. 816 of 1937, and this judgment would dispose of both these appeals. I shall first deal with Execution Second Appeal No. 677 of 1937 filed by the judgment debtor.

Mr. H.R. Aggarwal. learned counsel for the judgment-debtor, contended that the judgment-debtor did not disobey the injunction order by demolishing the drain and the finding of the Courts below to the contrary was not sustainable. I am unable to agree with this contention of the learned counsel. The finding that the drain in question was demolished by Bawa Singh, was arrived at after considering the entire evidence and is a pure finding of fact and is unassailable in second appeal. Even on merits the learned counsel could not satisfy me and no material was brought to my notice on the basis of which I could take a different view from the one arrived at by the Courts below. Hence the finding on issue No. 1 is affirmed.

It was next contended by Mr. H. R. Aggarwal that the present application made by the decree-holder under Order 21, rule 32, was not legally maintainable. The only remedy available to the decree-holder was by way of a separate suit and not by way of execution as the breach complained of gave a fresh cause of action to the decree-holder. On the other hand, Mr. S. S. Mahajan, learned counsel for the decree-holder; contended that the decree passed in favour of the respondent was for mandatory injuction by which the appellant was directed to construct a drain through which the water of the latrine could be thrown. According to the learned counsel, if any breach was committed any time by the judgment-debtor then the only remedy of the decree-holder was by way of an application under Order 21, rule 32(5) and not by way of a separate suit.

It may be mentioned that the manner in which the point on the question of maintainability of the application has been argued before me was never agitated before the Courts below. However, the point being purely legal, was allowed by me to be argued for the first time at this stage.

Order 21, rule 32 of the Code of Civil Procedure, deals with the execution of decrees for specific performance, for restitution of conjugal rights or for an injunction. Sub-rule (5) of this rule with which we are concerned, confers power on the Court in cases where the decree has not been obeyed, to direct the act to be done so for as practicable by the decree-holder or some other person appointed by the Court. There is no dispute that after the passing of the decree on 31st July, 1933, the judgment-debtor did not comply with the terms of the decree and the same was executed by a Local Commissioner appointed by the Court on the application for execution made by the decree-holder. Subsequently the judgment-debtor again demolished the drain which resulted in the filing of the present application. Under these circumstances, the short question that calls for an answer is whether for the act complained of, the remedy of the decree-holder Is by way of a separate suit or by way of execution.

So far as the legal position is concerned it seems to be fairly settled now that a decree for mandatory injunction can be executed in the manner provided in sub-rules (1) and (5) of rule 32, Order 21. (See in this respect Murari Lal v. Nawal Kishore AIR 1961 P&H. 647). It was not disputed before me that the decree in question was for mandatory injunction. By this decree the defendant (judgment-debtor) was directed to retain the latrine and to throw its water through the Parnala shown as ''L.M.'' in plan Exhibit P. 1 with a further direction to construct a drain with its slope towards the East so that the latrine water could flow towards that side. This injunction was to be obeyed by the defendant (judgment-debtor) and in case of its disobedience the decree-holder could resort to the remedy as provided under sub-rules (1) and (5) of rule 32, Order 21. In view of my finding on issue No. 1 it cannot be disputed that by demolishing the drain the judgment-debtor has disobeyed the injunction and failed to do the act which was required to be done under the decree. By filing the present application, the decree holder is only wanting the enforcement of the injunction and, in my view, the enforcement of an injunction is a question which relates to the execution, discharge or satisfaction of the decree by which tie injunction was granted. A right which has already been established and has become final between the parties, cannot be re-agitated again when infringed. The expression "the act required to be done" occurring in sub-rule (5) of rule 32 of the Civil Procedure Code, means what has to be cone in compliance with the decree. If any breach, at any time, occurs, then the only remedy of the decree-holder is to approach the executing Court and get the enforcement of the decree. In this view of the matter, I hold that the present application filed by the decree-holder is legally maintainable and no separate suit lies for the breach complained of.

Faced with this situation, Mr. H. R. Aggarwal contended that the application filed for execution was beyond limitation and should be dismissed on that short ground. This plea was neither taken in the objection petition nor was it ever agitated before the Courts below, nor was an issue claimed on this matter. The decision on the point raised now is dependant on facts and, in my view, this point cannot be raised for the first time in this Court at the stage of second appeal. Hence I reject this contention.

The only ground on which E. S. A. No. 816/1967 has been filed is that the learned District Judge has erred in interfering with the order of the executing Court and in reducing the amount of attachment of Rs. 2000/-. The view taken by the learned District Judge, in the circumstances of the case, is perfectly correct and no illegality has been brought out before me by the learned counsel on the basis of which I could take ? different view from the one arrived at by the learned District Judge.

No other point has been urged.

For the reasons recorded above, both the appeals fail and are dismissed with no order as to costs.