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1914 DIGILAW 58 (ALL)

Habibullah v. Abdulla

1914-02-26

PIGGOTT

body1914
JUDGMENT : 1. This is a judgment-debtor's appeal in an execution case. The decree in question directed the judgment-debtor permanently (hamesha ke waste) to close a certain door. The decree-holder says that, having formally complied with the decree by closing the door, the judgment-debtor shortly afterwards re-opened it. He claims relief under his decree, and if necessary by the application of the provisions of O. 21, R. 32 of the CPC. The judgment-debtor says in effect, as he also said in the Courts below, that the decree-holder has no remedy except by way of a fresh suit. It seems to me that a perpetual injunction was in fact granted by the words hamesha ke waste. Unless this meaning is given to them they have no meaning whatever. A perpetual injunction somewhat differently worded had been asked for in the plaint, and in determining the suit, the Court, while not granting an injunction in the precise terms asked for, nevertheless did not content itself with ordering the defendant to close the door in suit, but added to this a direction that he should keep it permanently closed. If the judgment-debtor has transgressed this direction I have no doubt that the decree-holder has a remedy under his decree and is not bound to bring a fresh suit. 2. In the second place it is contended that the judgment-debtor was not allowed a reasonable opportunity of proving the defence subsequently set up by him, to the effect that he had opened a new door in a different place and had not simply re-opened the door which he had been directed to close. I agree with the lower appellate Court that upon any reasonable interpretation of the petition of objection filed by the judgment-debtor on 5th October 1912 this point is concluded against him. He nowhere says that he has opened a door in a new place. The only point taken by him is that the decree-holder has no remedy under his decree even though the door temporarily closed in compliance with the decree may have been reopened. 3. In any case, when the point was Subsequently raised, evidence was allowed to be offered, and the lower appellate Court is of opinion that the point should be decided against the appellant on the evidence as well as on the pleadings. 3. In any case, when the point was Subsequently raised, evidence was allowed to be offered, and the lower appellate Court is of opinion that the point should be decided against the appellant on the evidence as well as on the pleadings. I certainly do not think that the Courts below were bound to issue a commission, or to allow further evidence to be taken in the manner-desired by the judgment-debtor. I dismiss this appeal with costs. 4. Let the application for stay of execution stand dismissed with costs.