Harbans Lal and Others vs Charanjit Singh

Arun Kumar Goel, Judge

This revision is directed against the order dated 30.3.1995 passed by learned Munsiff, Jammu in execution proceedings. By means of impugned

order petitioners have been directed to be detained in civil prison for a period of six weeks on the respondent decree holder deposition diet

expenses as per rules. Such expenses have been worked out at Rs. 900/

At the time of hearing of this revision petition learned counsel were not at variance regarding certain facts which are noted herein below.

An exparte decree for injunction has been passed in favour of respondent and against the petitioners. Application was filed by the petitioners for

setting aside the decree, which was dismissed. Appeal also met the same fate, as also the revision. Thus, the decree for injunction has become

conclusive between the parties.

Respondent preferred execution of decree on the plea that the petitioners wilfully disobeyed the same with a prayer for demolition and removal

kacha structure prayer for putting them in civil prison was also made. But because of interim orders passed in the proceedings for setting aside

exparte decree, the said execution was ordered to be consigned to records on 4th Nov., 89. After the dismissal of revision, an application was

filed for restoration/ revival of previous application. This is how the execution came up before the court wherein objections were filed by the

petitioners. Amongst other things, plea raised by them was that the respondents were never in possession of the suit land. Existence of kacha

structure in the shape of a room according to petitioners has been put up by them prior to the filing of suit. This is how the they resisted the

execution and prayed for its dismissal. In the aforesaid background impugned order has been passed by the trial court.

Learned counsel for the petitioners at the time of the hearing of revision petition urged by placing reliance on execution filed by the decree holder

before the trial court, copy where of is placed as Annexure P2 with this revision petition, and by referring to page 3 of this execution against

Column j, he pointed out that the kacha structure in the shape of a room was put on 2nd October 89. He further placed reliance on Annexure P3.

the application for revival of execution filed by the respondents before the trial court and urged that in paragraph3 the date of raising kacha

structure is given as 22nd October, 90. On this basis he pointed out that kacha structure in question is in existence much prior to the filing of the

suit, as such the impugned order is liable to be set aside. This argument is totally fallacious, reason being that exparte decree as per execution

(Annexure 2 to the revision petition) is dated 28th Sept., 88 in File No. 59/ Civil. If that was so it is not understood as to what benefit learned

counsel for the petitioners wanted to take from the dates referred to hereinabove. Both the dates are admittedly subsequent to the passing of the

decree in question.

Another plea urged by Sh. Sharma was that no order could have been passed by the trial court under Order 21 Rule 32 Sub Rule 5, which

could only be passed in case of a decree for mandatory injunction. In case of disobedience of a prohibitory injunction, only course open for the

respondents was to have filed a fresh suit. He further urged that this is a not a case of wilful disobedience. In this behalf he placed reliance on AIR

1989 Karnataka 163, Kariyappa Vs. Haladappa. This plea has been seriously contested by Sh. Thakur who submitted that if the reasoning given

in this judgement is accepted, then the result will be disastrous. In support of his submission he placed reliance on a decision of Allahabad High

Court reported in AIR 1986 Allahabad 9, Harihar Pandey Vs. Mangata Prasad Singh and Others

Before referring to these two decisions, certain other facts need to be noted. Executing court is required to execute the decree as it exists in

accordance with law and in no case it can go behind the same and or examine its correctness, more especially in the circumstances of this case on

facts. That being so then the import of the decree has to be seen. Learned counsel for the parties were again at variance that a decree for

permanent injunction was passed against the petitioners on 28.9.1988. It hardly needs to be reiterated here that injunction would only be granted in

favour of a party after it was found as a question of fact that such a party is in possession of the property in question and it was then that the decree

came to be passed. In this view of the matter trial court was well advised to have passed the impugned order. Whether the petitioners in the

present case were in possession prior to the passing of decree and or having put up a kacha structure and room before filing of the suit, is a

question which cannot be gone into in the execution proceedings and in the face of decree of the trial court. If this is allowed to be done, it will not

only negate the decree but will be allowing the trial court to go behind the decree which is not permissible under law. Once the petitioners were

injuncted, they had no business muchless any right to have put up a kacha structure on the land in question which they claim to have put up before

passing of the decree. Thus in the peculiar circumstances of this case they cannot be permitted to it1 open the decree in question which has

admittedly attained finality between the parties After having gone through the decision of Karnataka High Court. I have not been able to reconcile

with the view that only in case of mandatory injunction that action under Order 21 Rule 32(5) of the CPC can be initiated and not in a case where

only prohibitory injunction is passed. In addition to this, it is a judgment on its own facts because after passing of the decree in question judgment

debtor therein had filed a subsequent suit with a view to show that admittedly a house was existing before filing of the earlier suit. It was in that

background that the findings were recorded by the said court. On the other hand decision of Allahabad High Court, referred to hereinabove,

clearly shows that once findings of wilful failure to obey the decree is recorded which position is clearly made out, stage for ascertaining as to when

temporary structure was put up is over with the passing of the decree. As such I am in respectful agreement with the decision of Allahabad High

Court. 8. Some of the grounds on which decree can be challenged are that either it is obtained by fraud or is a nullity having been passed by a

court which lacked inherent jurisdiction This is admittedly not the situation in the present case. Whether the petitioners were in possession of the

land in question and or they had constructed the temporary structure in question before filing of the suit could have been asserted by them at the

first available opportunity i.e. when they filed the application for setting aside exparte decree. Admittedly no such plea has been put up. In case

they were bonafide and in fact were in actual possession of the land in question as is being claimed by them as now and had already put up the

temporary structure, it was the best opportunity for them to have pleaded so. Admittedly that has not been done. On this basis also it can safely be

inferred that the plea now put up regarding their being in possession and or temporary structure having been put up before filing of the suit is purely

an afterthought with a view to defeat the decree in question. As such no exception can be taken to the impugned order. On an overall examination

it is clear that the trial court has committed no illegality in passing the impugned order nor there is any failure of jurisdiction within the meaning of

Section 115 of the Code of Civil Procedure calling for interference in this revision petition.

No other point is urged.

As a consequence of aforesaid discussion there is no merit in this revision petition which is accordingly dismissed with costs which is quantified

at Rs. 1000/. Parties through their learned counsel are directed to appear before the trial court on 2nd December, 2K. Trial court is directed to

give three months time enabling the petitioners to comply with the decree in question from the date of appearance before it by them, and if they still

fail to do the needful, impugned order passed by the trial court shall be given effect to on deposit being made. No fresh notices will be issued to the

parties by the trial court since date is given by this court. Records be returned so as to reach well before the date fixed before the trial court.