Star Diesel Service vs Gour Chandra Bera

Learned counsel for the petitioner, who is the decree-holder in a suit for permanent injunction, has preferred the present challenge against an order, whereby the executing court refused to allow the petitioner's prayer for breaking open the padlock in execution of such decree, primarily on the ground that by such putting the padlock, the decree-holder has been dispossessed and such possession cannot be restored in the execution case under Order XXI Rule 32(5) of the Code of Civil Procedure.

Learned counsel for the petitioner submits that the said approach was entirely de hors the law and the executing court had ample power to direct breaking open of the padlock in order to give effect to the decree for permanent injunction.

Such contentions are controverted on behalf of the judgment-debtor/opposite party. Learned counsel for the opposite party submits that the opposite party already filed an eviction suit against a third party to the present proceeding and had obtained an order of injunction in such suit restraining the defendant therein form sub-letting the suit property. It is, further, submitted that the present petitioner sought to implead himself as a party to the said suit.

However, learned counsel for the opposite party failed to satisfy this Court that any form of challenge has been preferred against the present decree for permanent injunction and/or that any interlocutory application has been filed in connection with the execution case by the opposite party, urging his rights.

Upon hearing the matter for quite a long time, learned counsel for the opposite party seeks leave to file an affidavit-in-opposition, thereby disclosing documents, pertinent according to him, in respect of the other suit.

Upon hearing both sides, it is evident that the scope of the application under Article 227 of the Constitution of India is very limited. The executing court rejected the application for breaking open the padlock filed by a decree-holder, being the present petitioner, despite the existence of a valid decree for permanent injunction restraining the judgement-debtor/opposite party from creating any disturbance/obstruction to the partner of the plaintiff-firm at the time of running business at the scheduled suit property and from dispossessing the plaintiff from the suit property.

In such view of the matter, the executing court refused to exercise jurisdiction vested in it by law in rejecting the said application, on a patent misinterpretation of Order XXI Rule 32(5) of the Code.

In this context, Order XXI Rule 32 of the Code is set out below:

"32. 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 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 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, an 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.]" .

A perusal of the said rule makes it abundantly clear that in the event a decree for permanent injunction is disobeyed, the courts' hands are not tied only to the procedure laid down in sub-rule (1) of Rule 32 of the Code, being the detention in civil prison or attachment of the property of the judgment-debtor.

It is clearly provided in sub-rule (5) of Rule 32 that 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.

The explanation to the said Rule categorically provides that the expression "the act required to be done" covers prohibitory as well as mandatory injunctions.

The illustration to the said Rule further elucidates the position of law, conferring sufficient power to the court to have the decree executed by removing any hindrance to such decree put up by the judgment-debtor.

In such view of the matter, the executing court refused to exercise jurisdiction vested in it by law in rejecting the application of the petitioner.

It is relevant to note in this context that it appears that the prayer for filing affidavit-in-opposition is unnecessary and redundant in a revisional application of this nature, since the relevant facts are already on record and the fact of pendency of a separate eviction suit at the instance of the judgment-debtor/opposite party has no bearing whatsoever on the present revisional application.

In such view of the matter, the prayer for using any affidavit-in-opposition is refused by this Court.

C. O. No. 4102 of 2018 is allowed on contest, thereby setting aside the impugned order and directing the court below to fix another date for the bailiff to remove the padlock from the decretal property, as expeditiously as possible.

It is made clear that this order will not prevent the judgment-debtor/opposite party from taking out any challenge to the decree for permanent injunction-in-question in any manner and if such challenge is taken out, none of the observations made herein will adversely influence the court in taking up such challenge.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.