Mst. Hajra vs Abdul Majeed Matoo and Others

M.L. Bhat, J.—This revision is directed against the order of execution and raises some important questions of law. In order to appreciate

the questions involved, it is necessary to give brief facts.

Petitioner herein is the judgment-debtor and the respondent 1 is the decree-holder. A decree for mandatory injunction directing the petitioner

and respondent No. 2 to vacate from the suit property and a decree for permanent injunction restraining the defendants from causing any

interference in the possession of the plaintiff with respect to the suit property was passed by the trial court. An appeal was filed against the said

judgment and decree before the Sub Judge, Chief Judicial Magistrate, Srinagar. The appeal also came to be dismissed on 15-12-1984. The

judgment and decree of the trial court assumed finality. An execution was taken against the decree by the respondent 1 herein. It was prayed in the

execution application that the judgment-debtors refuse to obey the decree, therefore the decree may be executed by sending the judgment-debtor

to the civil prison and by giving possession to the decree - holder. On this execution application coming before the trial court, the trial court issued

a notice to the judgment-debtors and, among the judgment-debtors, the petitioner alone contested the execution matter before the trial court. She

filed an application before the trial court on 14-9-1985 raising three objections to the execution of the decree; namely,

a. That the decree under execution has been obtained fraudulently on false and frivolous grounds;

b. That a suit for cancellation of the decree under execution is already filed and a temporary injunction is issued against the decree-holder and he is

directed to maintain status quo;

c. That the decree was not executable.

The trial court, which was the executing court also overruled these objections and held that the decree was executable and ordered execution.

On appeal the 1st Additional District Judge, Srinagar held that in view of the amendment in the Civil Procedure Code, any order passed by the

executing court u/s 47 is not appealable. Therefore the appeal was held not maintainable. Hence this revision.

Appearing for the petitioner, judgment-debtor, Mr. Mohd Shaffi has submitted that the decree was not executable because the decree-holder

was out of possession. Therefore, even after having obtained the decree, he was bound to file a fresh suit against the judgment-debtors for the

recovery of possession. He, however, conceded that such a decree was executable under Order 21 Rule 32 of the CPC. The learned counsel

contended that initially the relief claimed by the decree holder was not tenable inasmuch as the decree-holder was out of possession, therefore a

suit for mandatory injunction or perpetual injunction would not lie and could not be decreed. He has also raised objection as regards valuation

fixed in the suit. I am afraid that both these contentions are misplaced at this stage. The executing court cannot go beyond the decree is the settled

principle of law which flows from Section 38 of the CPC. In other words it means that the executing court has to execute the decree as it stands. It

can, however, in exceptional cases refuse to execute the decree, for illustration, it can refuse to execute a decree, if it is passed against a dead

person. In that event the decree itself will be a nullity. It can also refuse to execute a decree if the court passing a decree had not the inherent

jurisdiction to pass a decree. It can only decide the matters which relate to the execution, discharge or satisfaction of the decree u/s 47 of the

CPC. Mode of the execution in respect of decrees for mandatory and perpetual injunctions is given in Order 21 Rule 32 CPC. Sub-rule (1) and

Sub-rule (5) of the said rule are relevant for our purpose. These two sub-rules read as under :

(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 wilfully failed to obey it, the decree may be enforced (in the case of a decree

for restitution of conjugal rights, by the attachment of the 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.

(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 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.

From the reading of Sub-rule (1) in respect of decree for injunction, it is manifestly clear that if the judgment-debtor has had an opportunity of

obeying the decree and has wilfully failed to obey it, the decree may be enforced by his detention in the civil prison or by attachment of his

property or by both. Sub-rule (5) is supplementary to Sub-rule (1). In the decrees for injunction, if the directions contained therein are not obeyed,

the executing court may in lieu of or in addition to all or any of the processes contained in Sub-rule (1) direct that the act required to be done may

be done so far as practicable by the decree-holder or by sonic other person appointed by the court, at the cost of the judgment-debtor.

Decree for injunction of any kind cannot be executed in any other manner than provided under Order 21, Rule 32 CPC. It cannot be executed

in the manner which is provided under Order 21, Rule 35 or Rule 36. It is now well settled that if anything is required to be done by law or by any

rule in a particular manner, that thing has got to be done in that manner and in no other manner. Therefore, it is to be held that decree holder cannot

ask the court to execute the decree under Order 21, Rule 35 or Rule 36 which relates to the execution of the decrees for possession and joint

possession respectively. It is to be executed in the manner which is prescribed by Order 21. Rule 32 and in no other manner.

Counsel for the petitioner relied on Sarup Singh Vs. Daryodhan Singh, and submitted that delivery of possession cannot be granted in a decree

for injunction and Sub-rule (5) of Rule 32 cannot come to the aid of the decree holder to seek dispossession of the judgment debtor from the

property which was subject matter of the suit for injunction. The contention is that Sub-rule (5) of Rule 32 would come into play only when some

act required to be done under the decree may be done so far as practicable by the decree-holder or by some other person appointed by the court

at the cost of the judgment-debtor. The decree of the court passed in the case directing the judgment-debtor to vacate the possession is not an act

which may be done without the will and volition of the judgment-debtor. The premises are not to be vacated by the decree-holder, therefore Sub-

rule (5) would not afford any relief in the execution of the decree to the decree-holder.

With respects, I partly agree with AIR 1972 Del 142. The authority appears to be sound in so far as it lays down that decree for injunction is to

be executed only in the manner prescribed under Order 21, Rule 32, CPC and in no other manner and the reasoning given by the learned Judges

constituting the Full Bench in this aspect of the matter also appears to be well founded. But a decree of injunction is held to be in executable under

Sub-rule (5) of Rule 32 if the judgment-debtor is in possession of the property. The reasoning given on this aspect of the matter, that is, in respect

of the application of Sub-rule (5) of Rule 32 does not appear to be reasonable. If a licensee is granted right of user and he refuses to vacate the

premises at the expiry of the period of licence, a suit for mandatory injunction against the said licensee is maintainable. If the reasoning of the Delhi

High Court is followed, then such a decree against the licensee who has the occupation becomes in executable inasmuch as the possession of the

premises cannot be obtained so long the licensee is in possession and without his volition. Cases may be conceived where the judgment-debtor is

sought to be removed in pursuance of decree of mandatory injunction from the premises which are held by him and the decree in such cases

cannot be said to be unexecutable merely because without evicting the judgment debtor, the decree cannot be satisfied. Sub-rule (5) authorises the

court to assist the decree holder to occupy the premises or some one else on his behalf in pursuance of the decree of mandatory injunction. It does

not conceive of a situation that if the judgment debtor is in possession, decree holder for all times to come will be helpless and shall have to bring a

suit for recovery of possession. Such a meaning if given to Sub-rule (5) would make the purpose and intention of the rule redundant and

meaningless and if the interpretation of Delhi High Court as regards Sub-rule (5) is accepted, then the licensee once inducted is to continue even

after a decree for mandatory injunction is passed against him and the said decree will be redundant unless it is followed by a decree for possession.

When a decree for mandatory injunction is passed, it cannot be held to be unexecutable and the decree holder cannot be forced to fresh

litigation after having fought litigation once for quite a number of years. Law does not countenance this. Nor had the Legislature intended to defeat

the decree of mandatory injunction simply because the judgment debtor has refused to vacate the premises which under the decree he had to

vacate.

There is another difficulty also about the interpretation of Sub-rule (5) as given by the learned Judges of the Delhi High Court. Execution of the

decree of mandatory injunction, according to the reasoning of the learned Judges constituting the Full Bench, would depend on the sweet will of the

judgment debtor. If he chooses to vacate the premises, decree stands executed. If he refused to vacate the premises, decree holder cannot be

granted the possession and the court becomes helpless. The judgment-debtor, therefore, is the master in the matter and he may or may not allow

the decree of this nature to be executed. Does the law countenance that execution of a decree shall be at the pleasure of the judgment debtor?

With respects, such a situation is fraught with dangerous consequences and would lead to absurdity. The provisions regarding execution of decree

of injunction will also be rendered infructuous.

A decree for injunction is executable, but only in the manner provided under Order 21, Rule 32. The decree holder is to satisfy the court that

the judgment-debtor despite having an opportunity of obeying the decree has wilfully failed to obey it and thereupon the court has to issue the

process against the judgment debtor. But before the process is issued for enforcing the decree against the judgment-debtor, it must be satisfied that

the judgment debtor has had an opportunity of obeying the decree but has wilfully failed to obey it. The judgment debtor can suffer detention in

civil prison, attachment of property and in addition or in lieu of the above, the decree holder or some other person may be directed by the court

too enforce the compliance of the decree at the costs of the judgment debtor. That would mean that even if the judgment debtor is in possession,

which possession he has to vacate under the decree, he can be compelled to vacate the premises under Sub-rule (5) of Rule 32. The court will

come to the help of the decree holder and give him all possible assistance to occupy the possession, if it is practicable for the decree holder to

occupy the possession. That inevitably would mean that the judgment debtor could have been thrown out from the property, from which he is

directed to be evicted, by force.

Decree for injunction is a command issued by the court to do a thing or to forbear from doing a thing. The command once given, which has

assumed finality, can be enforced by the court which gave the same and the mode of its enforcement is given in Section 51 read with Order 21,

Rule 32, CPC. Therefore the argument that the decree holder is required to file a suit for possession or recovery of the possession and he cannot

resort to Sub-rule (5) of Rule 32 is misplaced. The decree holder can invoke Order 21, Rule 32, Sub-rule (1) and (5) for enforcing the decree for

mandatory injunction and perpetual injunction, If the court has not issued the process against the judgment debtor under that rule, it must at once

issue such process against the judgment-debtor and enforce the decree under the provisions of law.

The other contentions raised by Mr. Moh'd Shaffi are devoid of force because at this belated stage, after the decree has assumed finality, it

cannot be held that it is rendered bad because the relief in the plaint was not moulded properly or that court fee was not paid according to law.

These are matters which are curable u/s 99 of the CPC. If the plaintiff-decree-holder was out of possession, the judgment debtors could have

raised this objection before the trial court and got a finding on that point. But once the courts below have chosen to pass a decree for mandatory

injunction, this court cannot go into the sufficiency or insufficiency of the material or the technicalties of the pleadings and scrutinize as to whether

the decree was validly passed or not.

If the decree holder has applied for delivery of possession in the execution application, that should be treated as an application under Order

21, Rule 32 and the executing court should proceed strictly in accordance with that rule and put the decree holder in possession of the suit

property by getting the premises vacated by the judgment debtor in the manner prescribed under Sub-rule (1) and (5) of Rule 32. The pendency of

any civil suit or status quo granted by any other court of coordinate jurisdiction about the execution of the decree will not stand in the way of the

executing court to execute the decree. If and when the judgment debtors succeed in any litigation, they may be fighting, to overset the decree in this

case, they will be granted the relief. But till then there is no option for them to disobey the command of the trial court. They have to obey the

decree for injunction in whatever form it is passed.

The order of the learned 1st Additional District Judge is perfectly legal. The executing court's order overruling the objections u/s 47 of the

judgment debtors is not appealable in view of the amended provisions of the CPC. There is no infirmity or illegality in the order of the trial court

which can be corrected in this revision.

The revision petition is therefore without any merit and is dismissed as such. There will be no order as to costs. The parties through their

counsel are directed to appear before the trial court on 18-5-1986. The record of the trial court be sent back to it immediately.