Kailash Chand Mittal vs Tirath Parkash Mittal and Others

Alok Singh, J.—Present petition is filed challenging the order dated 31.03.2010 passed by the learned Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhri (Executing Court) whereby issuing the warrant of possession in respect of the room in question. The brief facts of the present case are that the Plaintiffs - decree holders filed Civil Suit No. 673 of 1997 in the Court of Civil Judge (Junior Division), Jagadhri, seeking permanent prohibitory injunction restraining Defendant Nos. 1 to 3 from interfering in the actual physical possession of the Plaintiffs over the portion of the property bearing No. M.C.J. 1241 shown with letters ABCHEFGHI in the rough site plan attached with the plaint and also sought mandatory injunction directing Defendant Nos. 1 to 3 to reconstruct the forcibly demolished wall X-Y as shown in the site plan attached with the plaint. The suit filed by the Plaintiffs was partly decreed by the learned Trial Court vide judgment and decree dated 01.04.2006. While decreeing the suit, the learned Trial Court has passed the following judgment:

In view of above discussion, the suit of the Plaintiffs partly succeeds and is hereby decreed with no order as to cost to the effect that the Defendants are restrained from interfering in the exclusive possession of the Plaintiffs over southern portion of the property excluding dehleej, gate and court yard which is used jointly by the parties to the proceedings. Rest of the relief claimed by the Plaintiffs is hereby declined. Decree-sheet be prepared accordingly and file be consigned to the record room, after due compliance.

Feeling aggrieved from the partial dismissal of the suit, appeal was preferred by the Plaintiffs, which was also dismissed. However, Defendants have not filed any appeal against the judgment and decree decreeing the suit partly in favour of the Plaintiffs. The Plaintiffs -decree holders moved an application before the Executing Court under Order 21 Rule 32 CPC especially stating therein as under:

That on 25.8.2008 the D Hs and their family members have gone out of station to meet their relatives and in the absence of DH, the J Ds No. 1 and 2 in utter violation of the orders passed by Hon''ble Court have forcibly dispossessed the DH from the first room towards eastern side of point EF, which is part and parcel of the property marked by letter ABCDEFGHIL. Few articles of the Plaintiffs/DH were lying in this room, but taking the advantage of the fact that DH is not at home, the J Ds No. 1 and 2 by taking forcible possession of that room have placed their articles therein. When on 28.8.08, the DH returned, he found the mischievous act of J Ds No. 1 and 2. The matter was immediately reported to the police and thereafter panchayats were going on between the parties, but yesterday, the J Ds No. 1 and 2 have flatly refused to restore the possession of DH over the room in question.

The judgment debtor - Petitioner herein preferred objections against the execution application stating therein that room in question was in the possession of the Defendants from the very inception and it was constructed by the Defendants over the common court yard.

The learned Executing Court after hearing both the parties has made following observation in paragraph No. 5 of the impugned order:

From the discussion above, it is clearly made out that southern portion of the residential house shown by letters ABCEDFGHLI has been held to be in possession of Decree Holder since long. Room in question is part and parcel of southern portion of the residential house. Thus, it is made out that decree holders were also in possession of the said room if that being so, plea of judgment debtors that they have been in possession of the said room since long even before institution of the suit is not acceptable.

Consequently, inevitable follows that decree holders were dispossessed by judgment debtors No. 1 and 2 after passing of the decree. It has been held in Ranwari Lal''s case (supra) Ram Singh''s case (supra), Krishna''s case (supra) and Inder Singh''s case (supra) that where possession is alleged to have been forcibly taken by judgment debtor and dispossession of decree holder was against decree passed by Court, then the Executing Court has power to restore possession to decree holder." Feeling aggrieved from the judgment passed by the learned Executing Court, issuing warrant of possession against the judgment debtor - Petitioner herein, the Petitioner has filed revision petition under Article 227 of the Constitution of India.

Learned Counsel for the Petitioner - judgment debtor vehemently argued that warrant of possession under Rule 32(5) of Order 21 CPC cannot be issued by the Executing Court when dispossession is alleged by the decree holder in violation of the decree for permanent prohibitory injunction. Learned Counsel for the Petitioner states that instead of issuing the warrant of possession, an order attaching the property of the judgment debtor or direction to put the judgment debtor in civil prison could have been passed.

Learned Counsel for the Petitioner - judgment debtor further argued that in the present case, neither issue was framed nor any evidence was taken before passing the impugned order. It was necessary for the Executing Court to take evidence on the point as to whether judgment debtor has taken possession in violation of the decree. Learned Counsel for the Petitioner has placed reliance on the judgment of this Court in Raj Kumar v. Parshotam Dass, 1 2002 (2) CCC 664 as well as in the matter of Mangal Singh v. Man Singh 2 (1994)107 PLR 734 and judgment to Andhra Pradesh High Court reported in AIR 1997 1444 G. Anandam etc. v. The Warangal Municipal Corporation etc.

In reply, learned Counsel for the decree-holder - Respondent argued that during the pendency of the present petition, possession had already been delivered to the decree-holder, hence, there is no need to examine the illegality and correctness of the order passed by the learned Executing Court. Learned Counsel for the judgment debtor/Petitioner states that there is no dispute that decree holder has obtained possession pursuant to the impugned order.

I have carefully heard learned Counsel for the parties and have carefully perused the record.

In the matter of Raj Kumar (supra) and Mangal Singh (supra), learned Single Judge of this Court held that if violation of terms of decree is complained then decree holder is required to prove those allegations.

In the present case, decree-holder is stating that he has been dispossessed from the room in question in violation of decree of permanent prohibitory injunction on 23.08.2008; while at another place, judgment debtor is saying, he had been in possession throughout over the room in question even from the time prior to the institution of the suit and he never dispossessed the Plaintiff - decree holder from the room in question after the passing of the permanent prohibitory injunction decree. In the opinion of this Court, once possession of the Defendant was not recognized by the learned Trial Court and possession of the Plaintiff was recognized by the learned Trial Court while decreeing the suit of the Plaintiff granting permanent prohibitory injunction then at the face of it, it seems that Defendant was not in possession before or at the time of passing of the decree and he has forcibly taken possession on 25.08.2008 in violation of the permanent prohibitory injunction decree. Had Defendant/judgment debtor been in possession as alleged, he would have challenged the judgment and decree passed by the learned Trial Court by way of filing the appeal which admittedly he did not challenge.

Order 21 Rule 32 CPC reads as under-

Decree for specific performance for 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 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.

Explanation - For the removal of doubts, it is hereby declared that the expression "the act required to be done" covers prohibitory as well as mandatory injunctions.

From the perusal of the Rule 32 of Order 21 Code of Civil Procedure, this Court is of the opinion that if an execution is filed complaining the violation of the permanent prohibitory injunction decree, first of all decree shall be executed by attachment of the property of the judgment debtor or by detention of the judgment debtor in the civil prison. In the opinion of this Court, if decree holder is dispossessed from the property in question in violation of permanent prohibitory injunction decree then possession to the decree holder can be restored back either by compelling the judgment debtor by attaching the property of the judgment debtor or by detaining him in civil prison or by issuing warrant of possession against the judgment debtor under Sub Rule 5 of Rule 32 of Order 21 CPC read with Section 151 CPC in view of the explanation added by 2002 Amendment after sub Rule 5 of Rule 32 of Rule 21 Code of Civil Procedure.

In view of the explanation added, it can safely be said that judgment debtor was required by the permanent prohibitory injunction decree not to interfere in the possession of the decree holder if it is found that judgment debtor has interfered in the possession of the decree holder in gross violation of the decree then of course decree holder cannot be left remediless. The learned Single Judge of Kerala High Court in the matter of Krishnan Namboodiri v. Unnikrishnan Namboodiri 4 2005(3) CCC 201 in paragraph Nos. 20 and 21 held as under:

From the principles of law mentioned above and the facts and circumstances of this case, there can be no doubt that the executing court was not justified at all in denying the relief for delivery of possession on a technical ground that a decree for prohibitory injunction cannot be enforced in the manner prayed for by the decree holder. The decision of the executing court is patently illegal and without jurisdiction which requires to be corrected by this Court in the exercise of jurisdiction u/s 115 of the Code of Civil Procedure.

A decree, an order or direction passed or issued by a Court is intended to be beyed. There is no justification for raising any technical argument against the implementation of the same. If decrees and orders passed by the Courts are violated or disobeyed without impunity by the parties to the suit or proceedings, the result would be lawlessness. To protect the rule of law and to see that the decrees and orders passed by the Courts are obeyed and implemented, ample provisions have been made in the Code of Civil Procedure. All the contingencies cannot be foreseen by the law makers. In appropriate cases, when there is nothing which prohibits a particular course of action being taken, it cannot be said that the Court lacks its inherent power to implement its own decision or to prevent disobedience of its decree or order or to restore the parties to the original position which they occupied before the disobedience or violation of the decree or order. If the Courts do not have the said inherent power, the litigants would have no faith in Courts and they may resort to other shortcuts than approaching the civil courts. Judicial notice can be taken that the number of writ petitions being filed before this Court for police assistance for implementing the orders passed by the Civil Courts are on its increase. The reason may be that the machinery of the Subordinate Courts in implementing their decrees and orders is ineffective or inadequate in the point of view of the litigants. It is also to be noted that the number of writ petitions being filed before this Court complaining of police interference in civil disputes is also on the increase in recent years. One of the main reasons for such complaints is the illegal interference by the police in civil disputes. One of the parties may resort to such practices since he hopes to get a speedy, though illegal and unjust, remedy. This points out to the need for having a pragmatic approach to the question in the matter of effective implementation and execution of the decrees and orders passed by the civil courts. The executing courts are not expected to deny relief to the decree holders on hyper technical grounds, which would tend to help the persons who suffered the decree or order in disobeying or violating such decrees or orders.

This Court in the case of Harbans Singh and Another Vs. Daulat Ram and Others, in paragraph No. 2 has held as under:

...Under Order 21, Rule 32 of the Code of Civil Procedure, a decree can be enforced not only by detention of the judgment-debtors in civil prison, but also by attachment and sale of property of the judgment-debtors. Rule 32 of Order 21 of the CPC does not prohibit the trial Court to issue directions to the judgment-debtors to deliver the land to the decree-holders, which they took in violation of the decree. The Court can always enforce its decree by giving such a direction or by issuing warrants of possession.

This Court in the matter of Ram Singh v. Sukh Ram 1989 P.L.J 718 in paragraph No. 3 and 4 has held as under:

The "ole argument raised on behalf of the judgment-debtor-Petitioner is that the executing Court had no power under Order XXI Rule 32 of the said Code to order restoration of possession and, therefore, to that extent, the order of the executing Court was wrong and illegal. In support of the contention, the learned Counsel relied upon the Full Bench judgment of the Delhi High Court Sarup Singh Vs. Daryodhan Singh, . On the other hand, the learned Counsel for the decree-holder relied upon Bagicha Singh Vs. Suba Singh and Others, .

In Bagicha Singh''s case (supra) the matter was considered at length and the judgment of the Delhi High Court in Sarup Singh''s case (supra) was also considered and it was held that it was no longer a good law in view of the Supreme Court decision in Krishan Murari Lal Sehgal Vs. State of Punjab, and the Full Bench judgment of this Court in Radha Ram v. Municipal Committee, Barnala (1983)85 Punjab Law Reporter 21. It was held therein that the mere sale of the attached property of the judgment debtor and the payment of compensation in lieu of mesne profits would not meet the ends of justice until possession of the land in dispute is also restored to the decree-holder. It was further held therein that even in a declaratory decree, direction can be given for compliance of all matters which are necessary consequences of the declaratory decree. Even those directions have been held to be executable up to the highest Court. Even if Sub-rule (5) of Rule 32 of Order XXI, does not come to the aid of the decree-holder, on general principles, the executing Court or the High Court has the jurisdiction to order that the possession of the land in dispute be restored to the decree holder. Thus neither law nor larger principles of justice come in the way in getting the restoration of possession to the decree-holder in these proceedings.

The above said judgments of Harbans Singh''s case and Ram Singh''s case (supra) have been relied by this Court in the matter of Banwari Lal v. Municipal Committee, Kanina 7 (2007)147 PLR 533.

I am in full agreement with view of the learned Single Judge of Kerala High Court in the case of Krishnan Namboodiri''s case (supra) and view taken by this Court in the cases of Harbans Lal, Ram Singh and Banwari Lal (supra). The judgment relied upon by the learned Counsel for the Petitioner in the matter of G. Anandam''s case (supra), learned Single Judge of Andhra Pradesh High Court in paragraph No. 13 has held as under:

It emerges from the above that the exercise of inherent power u/s 151 CPC to meet the ends of justice depends on facts and circumstances of each case. The judgment of the Supreme Court as pointed out in the earlier paragraphs in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, and the judgment in Ademma (AIR 1971 Andh Pra 53) (supra) and Jamaluddin (1995(1) Andh LT 115) (supra) dealt with cases where the Courts in exercise of the inherent power u/s 151 CPC granted relief to meet the end of justice and those were cases where there is no decree as such and at the interlocutory stage, the Courts exercised the power u/s 151 CPC where as the cases in Venkatasubbaiah (AIR 1969 A P 92); Y. Lakshmaiah AIR 1969 Andh Pra 32; Sarup Singh Vs. Daryodhan Singh, and Sunder Dass (AIR 1981 Delhi 85) relate to the interpretation of Order 21 Rule 32(1) and (5) Code of Civil Procedure. The distinction that was pointed out was that if there is violation, of a decree for mandatory injunction the remedy is provided under Order 21 R. 32(1) & (5) Code of Civil Procedure.

Where as in the case of prohibitory order prohibiting one party from interfering with the possession of another party the remedy for enforcement of prohibitory order is provided under Order 21 Rule 32(1). In a suit where injunction restraining the party from interfering with the possession of the Plaintiff is decreed and the Plaintiff is dispossessed highhandedly without taking any recourse to law, the remedy available to the Plaintiff-decree-holder is to seek arrest and attachment of the judgment debtor who violated the decree for prohibitory injunction under Order 21, Rule 32(1) and he cannot seek recourse to Order 21, Rule 32(5) Code of Civil Procedure. He cannot ask for restoration of possession as it would amount to modifying or altering the decree granted by the Court, under those circumstances the remedy available to the Petitioner is to file a fresh suit. If a decree holder is wrongfully dispossessed in violation of the prohibitory decree, his remedy is to seek arrest of the judgment-debtor and attachment of his property and not to seek restoration of possession, if he wants restoration of possession it can be obtained by filing a fresh suit as the relief sought for would alter or modify the very nature of the decree which cannot be granted u/s 151 Code of Civil Procedure. In exercise of the inherent power u/s 151 CPC the Court cannot go beyond the decree or travel beyond decree and modify or alter the decree. Therefore, the learned Counsel for the Respondent Municipality Mr. Gopal G. Naik is right in his submission that the trial Court should not have passed the order directing Police aid for restoration of possession.

In view of the judgments of this Court cited above and in view of the judgment of Kerala High Court, I am not in agreement with the view of the learned Single Judge of Andhra Pradesh High Court. If it is held that in the event of taking possession in violation of permanent prohibitory injunction decree, decree-holder has to file fresh suit, it would amount to giving license to the judgment-debtor to violate the decree and asking the decree-holder to once again file the suit for possession. In my opinion, it would be against the public policy and would be harsh to the decree-holder.

The petition is devoid of merit and is ordered to be dismissed with cost of Rs. 10,000/-.