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1976 DIGILAW 631 (ALL)

Ratan Lal v. Jagan Nath

1976-09-23

H.N.KAPOOR

body1976
JUDGMENT H.N. Kapoor, J.- This is a decree-holder's appeal against the order dated 3.10.1966 of the IV Addl. Civil Judge Agra in civil Appeal no. 72 of 1966 dismissing the decree-holder's appeal and confirming the order of the executing court dated 13.1.1966 allowing the objections of the judgment-debtors. The decree-holder had obtained a decree for a mandatory injunction in respect of certain constructions, i.e. larauri and pegs etc. on the piece of land shown by letters ABCDE in the map framing part of the decree in suit no. 289 of 1940. A decree for a permanent injunction restraining the defendants from interfering with the possession of the plaintiff on that piece of land was also passed. One of the judgment-debtors died during the execution proceedings and was substituted by Jagannath, Prabhu Dayal and others as his legal representatives. 2. In the present execution application it was alleged that the judgment-debtors had not obeyed the decree and had violated the same by making further constructions on the land in suit and as such they should be sent to civil prison and their property be attached. Prabhu Dayal and Jagannath filed objections alleging that they were not bound by the original decree as neither they nor their father were parties to the same. The remaining judgment-debtors filed different objections to the effect that they had not disobeyed the decree nor they violated it. Two misc. cases were registered on the basis of these objections, namely. Misc. case no. 167 of 1962 and Misc. case no. 77 of 1962. Objections of both the sets of the judgment-debtors were allowed on 13.1.1966 by different orders. In Misc. case no. 167 of 1962, it was held that Jagannath and Prabhu Dayal were not bound by the original decree and as such the decree could not be executed, against them under Order 21, rule 32 C.P.C. In Misc. case no. 77 of 1962, it was held that the decree-holder failed to prove that the remaining judgment-debtors had disobeyed the decree of injunction or violated the same. So far the disobedience of the mandatory injunction was concerned, it was held that there was a stay order by the High Court dated 10.4.1963 in Second Appeal No. 451 of 1963. Feeling aggrieved the decree-holder had filed only one appeal no. 72 of 1966 against both the orders dated 13.1.1966 against the two sets of the judgment-debtors. So far the disobedience of the mandatory injunction was concerned, it was held that there was a stay order by the High Court dated 10.4.1963 in Second Appeal No. 451 of 1963. Feeling aggrieved the decree-holder had filed only one appeal no. 72 of 1966 against both the orders dated 13.1.1966 against the two sets of the judgment-debtors. The office had raised an objection on the back of the memorandum of appeal to the effect that only one appeal did not lie. The appeal was admitted by the District Judge subject to the objection about the maintainability. In spite of the endorsement of the office no steps were taken by the decree-holder to file another appeal. The decree-holder also did not specifically opt that appeal no. 72 of 1966 be treated as an appeal against the order in one of the two Misc. cases only. The lower appellate court held that the appeal was not maintainable as only one appeal had been filed. It, however, decided the appeal on merit also and agreed with the findings recorded by the executing court in both the Misc. cases nos. 167 of 1962 and 77 of 1962. 3. Learned counsel for the appellant has argued that the appeal in the lower appellate court was accompanied by the certified copy of the order in Misc. case no. 77 of 1962 and as such should have been taken to be directed against the order passed in Misc. case No. 77 of 1962 only. In my opinion, it was necessary for the decree-holder to have opted before the lower appellate court that the appeal may be treated against the order in Misc. case no. 77 of 1962 only. However, I have considered this Second Appeal on merit also, so far Misc. case no. 77 of 1962 is concerned. It will, of course, follow that the order allowing the objections of Jagannath and Prabhu Dayal had become final in Misc. case no. 167 of 1962. So far the remaining judgment-debtors are concerned, the objections were considered in Misc. case no. 77 of 1962. The main allegations were that they had not obeyed the decree for mandatory injunction and they had also violated the decree for permanent injunction by making new constructions, that is, tarauni and fixing of new pegs, and constructing one room. So far the remaining judgment-debtors are concerned, the objections were considered in Misc. case no. 77 of 1962. The main allegations were that they had not obeyed the decree for mandatory injunction and they had also violated the decree for permanent injunction by making new constructions, that is, tarauni and fixing of new pegs, and constructing one room. A commission was also issued for showing that new constructions had been made on the land in dispute. The decree holder examined himself and the commissioner. I have seen the statement. The allegations are against all the judgment-debtors jointly and not against the judgment-debtors of Misc. case no. 77 of 1962 exclusively. A definite statement was made by Girraj, judgment-debtor that the room which was alleged to have been constructed belonged to Jagnnath. No doubt, according to him, it was there from the time of Jagannath's father. The executing court after considering the entire evidence on record arrived at the conclusion that the decree-holder had failed to prove that the remaining judgement-debtors of Misc. case no. 77 of 1962 had violated the Prohibitory injunction passed against them. The lower appellate court also arrived at the same conclusion. It would have been a different matter if the decree could be executed against both the sets of the judgment-debtors together. But when the objections of Jagannath and Prabhu Dayal had been allowed and that order had become final, it is not possible to hold the other set of the judgment-debtors of Misc. Case no. 77 of 1962 responsible for violation of the prohibitory injunction when the decree holder had not specifically stated as to what part of the decree had been violated by these judgment-debtors. It is unfortunate that suit is of 1940 and still the execution torture is not over for the decree-holder, but under the circumstances, as stated above, it is not possible to interfere in Second Appeal. Another Ex. Second Appeal no. 451 of 1963 is still pending. At one stage this appeal was ordered to be listed along with that appeal. But subsequently it was ordered to be listed separately as some substitution proceedings are pending in the other appeal. 4. In the result the appeal is dismissed but under the circumstances of the case, both the parties are directed to bear their own costs of this appeal.