Sansar Pal vs Rajinder Parsad and Another

I.S. Tiwana, J.—Can a decree for prohibitory injunction as opposed to mandatory injunction be executed in the manner provided for in Sub-rule (5) of Rule 32 of Order 21 Code of Civil Procedure; It arises in the following circumstances,

Respondent Rajinder Prasad obtained a decree against the Petitioner and others prohibiting them from interfering in his possession over the suit land, i.e. Khasra No. 129 Khewat No. 17 Khatauni No. 40 of village Daulatabad, Tehsil and District Faridabad. As per the allegations of the decree-holder, when he started raising a wall and installing a hand pump in this land it was objected to by the Petitioner on the ground that the said area formed part of Khasra No. 130 and not khasra No. 129 to which the decree related and, therefore, the former could not raise the construction or install the band-pump. In the face of this obstruction he filed the present execution application to do the needful with the help of the police, the executing Court has accepted this prayer of the decree-holder and has directed its execution in the following manner:

Therefore, it is clear that the judgment-debtor has not obeyed the decree for permanent injunction, thus in view of the provision of Order 21, Rule 32; the act which was required to be done by the judgment-debtor is to be done so far as practicable by the decree-holder or some other person appointed by the Court. Accordingly, I hereby appoint the ballif to get the decree of permanent injunction executed at the costs of the judgment-debtor. Notice be issued to the bailiff to get the decree executed on filing of PF etc. As is well settled that for the implementation of order of injunction, the court can order the police protection u/s 151 of the Code of Civil Procedure, therefore accepting the prayer of the decree-holder,'' I allow the application of the decree-holder. The SHO Police Station Old Faridabad, under whose jurisdiction the disputed property is situated be directed to provide necessary police help to the D.H. for the purpose of execution of the decree. Now it come up on 22-12-1990 for awaiting the report.

(Emphasis supplied).

It is manifest from the above quoted part of the lower Court order that it has issued directions in terms of Sub-rule (5) referred to above. This sub-rule relates to the enforcement of a mandatory injunction as it, requires that the act to be done by the judgment debtor, may be done by the decree-holder or some other person appointed by the Court at the cost of the judgment-debtor. On the contrary, a decree for prohibitory injunction simpliciter has to be executed in the manner provided for in Sub-rule (1) of this rule, i.e., by detention of the judgment-debtor in civil prison or by the attachment of his property or by both. This distinction between the two decrees, i.e., for prohibitory injunction and mandatory injunction, [is clearly brought out by a Division Bench of this Court in Murari Lal Vs. Nawal Kishore and Others, wherein it has been ruled:

So far as the legal position is concerned it seems to be fairly settled. It has been ruled by various High Courts that a decree for a prohibitory injunction cannot be executed as provided for in Order 21, Rule 32(5) and the mode of execution for such a decree is the one laid down in Sub-rule (1) of that rule.

In the instant case it is not in dispute that the decree in question merely prohibits the judgment-debtor from interfering in the possession of the decree-holder on the land specified therein, It nowhere enjoins on the decree-holder to act in a particular manner. In such a situation there can be no question of the Petitioner being guilty of disobedience of the decree.

For the reasons recorded above I allow this petition with costs and set aside the impugned order. The costs are determined at Rs. 500/-.