Rabindra Nath Das vs Karuna Das & Ors

Biswajit Basu, J

The present revisional application under Article 227 of the Constitution of India is at the instance of a decree holder in a suit for declaration of title and for permanent injunction and is directed against Order No.28 dated April 30, 2014 passed by the 2nd Court of learned Civil Judge (Junior Division), Tamluk, Purba Medinipur in judicial Misc. Case no. 9 of 2013 arising out of Title Execution Case no. 1 of 2013.

The suit filed by the petitioner was dismissed but the same was decreed in appeal.

The plaintiff/decree holder put the said decree into execution for recovery of possession of the suit property and also for putting the judgment-debtors/opposite parties in civil prison alleging that the judgment-debtors in violation of the decree under execution have dispossessed him from the suit property.

The said execution case was registered before the 2nd Court of learned Civil Judge (Junior Division) Tamluk, Dist. Purba Medinipore as to Title Execution Case No. 01 of 2013.

The judgment-debtors/opposite parties prayed for dismissal of the said execution case by filing an application under Section 47 of the Code contending, inter alia, that the decree under execution has declared only the title of the decree holder over the suit property and the said decree since is not for eviction of the judgment-debtors from the suit property or for recovery of possession of the same, the execution case is liable to be dismissed as not maintainable.

The Executing Court by the order impugned has allowed the said application thereby dismissed the connected execution case with the following observations:

"From the reading of the order portion of the appellant Court there is no order eviction and recovery of khas possession passed by the Ld. Court in favour of the plaintiff/appellant. Now, Decree holder prayed for erection of recovery of khas possession of the decree plots against the judgment debtors and Civil Jail for deliberate will fully violation of the permanent injunction order in the prayer portion of the Title Execution Case No. 01/13. In the cross examination of the petitioners/judgment-debtors clearly stated that they are in possession of the suit plots by exercising all their right and cultivated the same for the last 30 years. They have done the last cultivation work in the decree plots on 27th and 28th Srabon 1420 (B.S). If the petitioners/judgment debtors are in possession of the decree plots for last 30 years, there is no question of the violation."

The question, therefore, falls for consideration whether the decree holder/petitioner is entitled to maintain the connected execution case to recover the possession of the suit property, wherefrom he has allegedly been dispossessed by the judgment-debtors/opposite parties in violation of the decree under execution.

To answer the said question the scope of Order XXI Rule 32(5) of the Code as it stands after the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 2002 needs to be looked into.

Controversy arose as to the meaning and interpretation of the words "act required to be done" appearing in the body of the Order XXI Rule 32(5) of the Code as different High Courts had expressed different views in this regard.

The law commission in it's 154th report to resolve the said controversy made the following recommendation:-

"8.1.12.Recommendation.- Clarification is obviously needed on the point at issue. It is suggested that as a matter of legislative amendment, it is preferable to incorporate the wider view (though the majority of the High Courts have taken a contrary view) and to provide that the words "act required to be done" cover prohibitory (as well as mandatory) injunctions. This would also be in conformity with Section 3(2), General Clauses Act, 1897 which provides that in all Central Acts, the word "act" includes illegal omissions. Besides this, on the merits, there is also justification why a decree-holder should be driven to a separate suit for getting relief in the nature of enforcement of a decree which he must have obtained after considerable expenditure of time, labour and money."

Pursuant to the aforementioned recommendation of the law commission an explanation to Order XXI Rule 32(5) of the Code has been added by the Code of Civil Procedure (Amendment) Act, 2002, which runs as follows:-

"32. Decree for specific performance for restitution of conjugal rights, or for an injunction.-

(1)...........................................

(2) ...........................................

(3) ...........................................

(4) ...........................................

(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."

The said controversy has now been resolved by the incorporation of the said explanation to Order XXI Rule 32(5) of the Code, clarifying that the words "act required to be done" cover both prohibitory as well as the mandatory injunction.

On perusal of the materials on record it appears that the suit was decreed in appeal with the following decree:-

"Plaintiff/appellant do get a decree of declaration of right, title and interest in respect of 'Ka' and 'Kha' scheduled property and the plaintiff/appellant do also get a decree of permanent injunction in respect of 'Ka' and 'Kha' scheduled property."

The decree under execution being a decree for permanent injunction the Executing Court is not justified in dismissing the execution case on the ground that the decree under execution is a decree of title and prohibitory injunction without considering the applicability of the 'explanation' appended to Order XXI Rule 32(5) of the Code in the facts and circumstances of the present case.

That apart Executing Court by venturing into the investigation as to the possession of the parties over the suit property has violated the fundamental principle of law that the Executing Court cannot go behind the decree.

For the reasons discussed above the order impugned is set aside C.O. No. 2759 of 2014 is disposed of by directing the learned Executing Court to decide the application under Section 47 of the Code filed by the judgment-debtors/opposite parties in the connected execution case registered as Misc. Case No. 09 of 2013 afresh in accordance with law after taking into consideration, in particular the applicability of the 'explanation' appended to Order 21 Rule 32 (5) of the Code in the facts and circumstances of the present case.

The Executing Court is requested to dispose of the said Misc. case as well as the connected execution case expeditiously preferably within a period of six months form the date of communication of this order without granting any unnecessary adjournment to either of the parties.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.