Nanda vs Ram Dhan

R.L. Anand, J.—This is a civil revision and has been directed against the order dated 15.6.2000 passed by the court of Civil Judge (Jr, Divn.), Sonepat, who dismissed the objections of the Petitioner and also held that warrant of restoration of the possession could be issued in favour of the decree holder under Order 21 Rule 32 CPC.

Some facts can be noticed in the following manner:

A decree for permanent injunction was passed in favour of Ram Dhan against the Defendants including the present Petitioner vide which the Defendants were restrained from interfering in the possession of the decree-holder. The decree-holder filed an execution application under Order 21 Rule 32, CPC. In column No. 11 of the execution application, the decree-holder prayed that the relief may be given to him by issuing warrant of arrest for putting judgment-debtors No. 2 to 8 in civil prison or by attaching their properties or by both. The Petitioner filed objections to the execution application praying that the proceedings of the execution may be stayed. It was pleaded by the Petitioner that the Gram Panchayat was the owner of the property in dispute. The father of judgment Debtor No. 3 and father of the decree-holder used to cultivate the same. Later on judgment Debtor No. 3 started cultivating the land bearing killa No. 270/7 and 270/14. The entries with regard to the column of ownership have been wrongly shown in favour of the decree holder. It was also pleaded that the decree holder has not mentioned in the execution application on which date and time the judgment Debtor No. 3 has violated the decree for permanent injunction and in these circumstances, it was pleaded by the Petitioner for the stay and dismissal of the execution proceedings. The decree-holder filed the reply to the objections and it was pleaded that the Gram Panchayat and the decree-holder were the owners in equal shares. The father of judgment Debtor No. 3 never remained in cultivating possession of the disputed property. The decree-holder became the owner and he was in possession of half share of the disputed land. The application of judgment Debtor No. 3 for correction of khasra girdawari has already been rejected and was further pleaded by the decree-holder that the judgment debtors have taken forcible and illegal possession of the property in question after 26.11.1997.

The learned executing court, for the reasons given in para 5 of the impugned order, which is reproduced hereinbelow, dismissed the objections:

Vide decree dated 26.1.1997 Defendants including J.D. No. 3 were restrained from taking possession of the said land from the J.D. by means of force. The execution petition has been filed by the judgment-debtor under Order 21 Rule 32 CPC on the grounds that he was dispossessed after the passing the said decree and therefore he is entitled for restoration of the possession. The Executing Court cannot go behind the decree and question its correctness or validity except when it is passed by court without jurisdiction. As such it is clear the D.H. was in possession at the time of passing of decree on 26.11.1997. It is an admitted fact that now J.D. No. 3 is in possession over some part of the disputed property. Now the question is whether warrants of restoration of possession could be issued under Order 21 Rule 32 CPC or not. It has been held in the authority titled as Sarup Singh (supra) that warrants for restoration could not be issued. But in view of the latest law laid down in the authority titled as Ram Singh v. Sukh Ram, (1989)96 P.L.R. 579, the authority titled as Rarul Singh v. Rattan Singh is not applicable to the fact of the present case. The authority titled as Dalip Kaur v. Bant Singh, 1991 PLJ 341, can be also referred at this point. Therefore, it is clear from the above referred authority that warrants of restoration of the possession could be issued in favour of D.H. under Order 21 Rule 32 CPC. As such no ground is made out for staying the further proceedings in the execution petition filed by the D.H. Accordingly, the application for staying of execution moved by J.D. No. 3 is hereby dismissed.

Counsel for the Petitioner submits that the order of the learned executing court is totally without jurisdiction and the court has exceeded its jurisdiction by giving a finding that the warrant of possession can be issued in favour of the decree-holder. He submitted that the decree was for permanent injunction. In the prayer clause, the decree-holder has only prayed that the judgment debtors 2 to 8 may be put in civil prison or their properties may be attached.

After considering the submissions of the counsel for the Petitioner, this Court is of the opinion that the same are totally devoid of any merit. Counsel for the Petitioner has only read column No. 11 of the execution application. He has not read column No. 10 in which the decree-holder has categorically alleged that judgment Debtors 2 to 8 have willfully violated the injunction order by sowing jawar crop in killa No. 270/12, by ploughing killa No. 270/4,7,14 and by making khor, by installing khuntas, putting cow-dung on the tube-well and by cutting kikkar tree from the plot marked with letters CDEF situated in killa No. 270/6. This clearly indicates that after the passing of the decree dated 26.11.1997, the judgment debtors have violated the decree and had taken the forcible possession and this is so alleged by the decree-holder in his reply. Now, the point for determination is whether the executing court can pass any order for giving effective relief to the decree-holder in pursuance of the decree dated 26.11.1997. The judgment debtors cannot take the law into their own hands. If they after the passing of the decree violated the same by dispossessing the decree-holder, the courts are not to sit as silent spectators. The civil courts have full power to give effective relief to the decree holder who has earned the decree after long contest. On technical objections, the decree cannot be put to a naught as is being done by the judgment debtors. Even a reading of the Order 21 Rule 32, CPC, shows that it does not debar the executing court to pass such orders which are necessary and expedient in the interest of justice.

It was, then, submitted by the counsel for the Petitioners that the executing court has not given any finding to the effect that the decree-holder was dispossessed by the judgment debtors, after the passing of the decree dated 26.11.1997 and, as such, it cannot order for the restoration of the possession.

The submission is totally devoid of any merit. Even from the reply of the decree-holder, it was very clear that the judgment debtors have taken forcible and illegal possession of the property after 26.11.1997. So much so, the judgment Debtor No. 3 made an application for correction of the khasra girdawari which has also been rejected by the Assistant Collector 1st Grade. From this, a clear and reasonable inference can be drawn that the decree-holder was dispossessed after 26.11.1997. That is the reason that the executing court has made the observations that the warrant of restoration of possession can be issued in favour of the decree-holder under Order 21 Rule 32, CPC, and in this context the learned executing court has relied upon a judgment reported in Dalip Kaur v. Bant Singh, 1991 PLJ 341. The objections of the Petitioner have been rightly dismissed.

In this view of the matter, I do not find any merit in this revision and the same is hereby dismissed.