Des Raj vs Shavinder Kumar and Others

Nisar Ahmad Kakru, J.—This Revision Petition has been heard at its threshold without notifying the other side. The petition owes its origin

to the litigation that has started in the form of a suit, filed as far back as in the early 1985, for a decree of declaration and injunction, in respect of a

plot comprising survey number 216/379, situate at village/Estate Hakkal Satwari Tehsil Jammu, culminating in a decree dated 12-3-1993. Same

having gone un-assailed, attained finality, yet the judgment debtor chose not to obey it, giving rise to a motion, filed in the Court of the Sub Judge

Jammu, seeking execution of the decree which was confronted with the opposition on the ground of insufficiency of description of the property but

in vain, consequently success of motion, begetting a direction favouring the decree holder, requiring the Police not to allow interference by the

judgment debtor with the subject matter of the decree.

Being aggrieved, the impugned order is challenged by the judgment debtor on the basis of limits imposed upon the power of the Executing Court

by sub rule (1) rule 32 Order XXI of Civil Procedure Code, (CPC for short), besides, deficiency of description of the subject matter of the

decree. The contention has raised a few questions which are summarized hereunder:

(i) Whether Executing Court can take the aid from the pleadings and documents forming part of the suit and pleadings thereof to construe the

decree;

(ii) Whether the Executing Court can command the police to extend assistance to the decree holder in implementation of the decree.

To persuade me to answer the question No. (i) above in the negative, the learned Counsel vehemently contended that the executing Court could

not have gone beyond the decree, meaning thereby that insufficiency of the description of the subject matter of the decree, would entail dismissal of

the execution petition. If the argument is accepted it would unsettle the decree which has become final, forcing the decree holder to institute a fresh

suit, causing loss and inconvenience to seekers of justice, something beyond imagination, in view of rule of conclusiveness of the judgment, to the

effect that same cause cannot be permitted to be raised twice. Failure of a litigant because of omission to give the description, sufficient to identify

the subject matter of the suit, is conceivable, for, it is obligatory upon the plaintiff to give the full description of the suit property in the plaint but

refusal to execute the decree because of lack of sufficient description in the decree, represents a contention bereft of logic, devoid of force and not

countenanced in law. I say so, because the decree holder has no role to play in drawing the decree and the power to draw the decree is

exclusively within the domain of the Court. Thus insufficiency of the description will not stand in the way of the executing court and it will be within

its powers to place reliance on the pleadings of the parties and the material available on the record relating to the suit, the decree stems from, to

construe the decree in its right perspective and shall proceed to execute the decree unless set aside by the competent court of jurisdiction.

Accordingly question No. 1 is answered in the affirmative. As a corollary the ground of challenge founded on the absence of detailed description in

the decree fails. In taking this view I am fortified by judicial pronouncement handed down by the apex court in Bhavan Vaja and Others Vs.

Solanki Hanuji Khodaji Mansang and Another, and the relevant paragraph is extracted:

It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true

effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the

proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the

circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty

it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended

with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgment rendered by the Board

as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one

reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is

no reference to the documents to which we have made reference earlier. It appear to have been unduly influenced by the words of the decree

under execution. The appellate Court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined

to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it

involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and

the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words

used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an

omission to exercise the jurisdiction vested in them.

I would now like to advert to question No. (ii) spelt out hereinabove which is based on the contention advanced by learned Counsel for the

petitioner that a decree for injunction could be executed by the Executing Court by adherence to sub rule (1) of rule 32 Order XXI only and

according to learned Counsel it rules out assistance of the police. To ascertain the answer, it will be appropriate to extract rule 32 of Order XXI, in

its entirety, as also a portion of Section 51 of CPC hereunder:

Decree for specific performance, restitution of conjugal rights, or for an injunction:

(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has

been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree

for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an

injunction by his detention in the civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be

enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or

other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under Sub-rule (1) or Sub-rule (2) has remained in force for six months, if the judgment-debtor has not obeyed the

decree and the decree-holder has applied to have the attached property sold, such property may be sold: and out of the proceeds the Court may

award to the decree holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of

six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment

shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may in lieu of or in addition to

all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other

person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such

manner as the Court may direct and may be recovered as if they were included in the decree.

Powers of court to enforce execution.

Subject to such condition and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the

decree:

(a) by delivery of any property specifically decree;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison for such period not exceeding the period specified in Section 58, where arrest and detention is permissible

under that section);

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require.

Analysing the provisions of CPC extracted above and beginning with sub rule (1), it emerges that disobedience of a decree of injunction can be

tackled by the executing Court under sub rule (1) by remanding the person, disobeying the decree to a civil prison and by attachment of the

property after having been heard. Sub rule (2) takes care of a decree against a Corporation, Sub rule (3) speaks of sale of the attached property

at the instance of the judgment debtor and disposal of the sale proceeds. Sub rule (4) indicates when attachment has to cease.

Sub rules (2), (3) and (4) have no relevance to the case on hand and relevant being sub rule (5) and Section 51, it will be appropriate to know

their intent and purport. Sub rule 5 confers the power on the Court to appoint some other person to compel the judgment debtor to obey the

decree and the expression ""some other person appointed by the Court"" neither impliedly nor conceptually or otherwise excludes the police

personnel. Power of the court to execute the decree does not end here only but power also flows to it from Clause (e) of Section 51 to devise a

mode which can enforce obedience of the decree.

Sub rule (5) rule 32 Order XXI and Clause (e) of Section 51 confer ample powers on the Executing Court to evolve an effective procedure

necessary for implementation of the judgment which does not exclude assistance by police as well so as to ensure complete justice between the

parties. Learned Counsel for the petitioner is averse to this legal position because of mandate of sub rule (1) discussed above and even on a relook

it does not help him because sub rule (5) and Clause (e) of Section 51 form part of powers of the Court to enforce execution of a decree and

because of absence of the non obstinate clause overriding the said provisions. That being so, the executing Court is well within its powers to take

the aid of sub rule (5) to obtain compliance of the decree. Accordingly question No. 2 is also answered in the affirmative.

This is not the end of it, but there is something very important to dwell upon relating to the rights of the judgment debtor, those flow to him from

sub rule (1) that is opportunity to obey the decree. This opportunity, by all means, includes opportunity to raise the defence, if any, against the

execution of a decree.

Viewed thus, the Executing Court cannot ask the police to implement the decree before granting an opportunity to obey the decree enshrined in

rule (1). Needless to say that if the judgment debtor fails to obey the direction and has no defence to advance preventing the Executing Court from

executing the decree, nothing prevents it to command the police to render assistance in implementation of the judgment. Reverting to the case on

hand, the petitioner has failed to avail of an opportunity to obey the decree despite opportunity having been granted to him. That being the factual

position, I find no fault with the impugned order. The Revision petition is accordingly dismissed along with CMP without any order as to costs.

Registry to communicate this order to the Court below.