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1980 DIGILAW 346 (DEL)

SUNDER DASS v. MULAKH RAJ

1980-12-10

YOGESHWAR DAYAL

body1980
YOGESHWAR DAYAL ( 1 ) THIS revision petition is directed against the ex parte order of the executing court dated 31st August, 1979 ordering the issue of warrants of possession of the property in dispute. ( 2 ) IT appears that the respondent No. 1, Mulakh Raj, filed a suit for a decree for permanent injunction restraining petitioner, Sunder Das and one Bishamber Lal from interfering with his possession in relation to plots Nos. 32, 33 and 35, Wazir Nagar, Kotla Mubarakpur, New Delhi. The suit of Shri Mulakh Raj was decreed on 27th January, 1971 and a decree for permanent injunction was granted in his favour. ( 3 ) IN spite of the decree, the petitioner and Bishamber Lal disobeyed the decree and Mulakh Raj was dispossessed from the aforesaid property. ( 4 ) MULAKH Raj then applied for execution on the terms contained in O. 21, Rule 32 of the Code of Civil Procedure. In view of the application of the decree-holder both Sunder Dass and Bishamber Lal were ordered to be detained in civil prison. ( 5 ) THE appeal of the judgment-debtors against their detention in civil prison failed and this court by order dated 23rd May, 1974 dismissed the Execution Second Appeal on behalf of the judgment-debtors (E. S. A. 19/1973 ). ( 6 ) THE result of the aforesaid execution appeal was that the appeal was dismissed but the period of detention was reduced to six weeks. ( 7 ) IT appears that on 31-8-1975, practically eight years after the decree, the decree-holder made an application purporting to be under Section 151 of the Code of Civil Procedure stating inter alia, "that the judgment-debtors have taken unauthorised possession of the premises in suit that application is being moved under Section 151 of C. P. C. submitting before this Hon ble Court that this Hon ble Court may be pleased to issue warrants of possession against the judgment-debtors under the inherent powers and even the orders be made to put the decree-holder in possession". ( 8 ) THEREAFTER the impugned order dated 31st August, 1979 was passed by the executing Court ordering the issue of warrants of possession of the property in dispute. ( 9 ) MR. ( 8 ) THEREAFTER the impugned order dated 31st August, 1979 was passed by the executing Court ordering the issue of warrants of possession of the property in dispute. ( 9 ) MR. Rawal, who appears for Sunder Das, judgment-debtor, has contended that the mode of execution of decree for permanent injunction is provided for in Order 21, Rule 32 (1) of the Code of Civil Procedure and since there is no decree for delivery of immovable property no orders could be passed for issue of warrants of possession. In support of his submission, learned counsel tor the judgment-debtor relief on the Full Bench decision of this Court reported as AIR 1972 Delhi 142. Sarup Singh v. Daryodhan Singh. ( 10 ) IT is true that the decree in that case was for mandatory injunction. The observations of the Full Bench in paragraphs 9 and 10 are relevant and are reproduced below: "9. The learned counsel for the respondent has lastly urged that the Court cannot allow its decree to be disobeyed contumaciously and it must device some procedure under Clause (e) of Section 51 of the Code and in exercise of the said power, the execution court must use force to compel the judgment-debtor to vacate the premises. Clause (e) contains a residuary provision which comes into play where the decree in question cannot be executed according to clauses (a) to (d) or any other provision of law. Section 51 itself begins with the qualifying phrase "subject to such conditions and limitation" as may be prescribed, that is to say prescribed by statutory rules of the Code as denned by Section 2. This clause came up for consideration before a Division Bench of the High Court of Punjab, Circuit Bench at Delhi in Murari Lal v. Nawal Kishore, AIR 1961 Punj 547, where S. S. Dulat and D. K. Mahajan, JJ. This clause came up for consideration before a Division Bench of the High Court of Punjab, Circuit Bench at Delhi in Murari Lal v. Nawal Kishore, AIR 1961 Punj 547, where S. S. Dulat and D. K. Mahajan, JJ. followed a Full Bench authority of the High Court of Allahabad, Anandi Lal v. Ram Sarup, AIR 1936 All 495 and observed that all the various modes mentioned in Section 51 were not open to an execution Court in every case and it was to be guided by the procedure laid down in the schedule and must resort to the method appropriate to each case and that a decree for mandatory injunction had to be executed by attachment and sale of the judgment-debtors property and by detention in civil prison as provided by Rule 32 (1) of Order XXI of the Code and since this guide had been provided, no resort could be had to clause (e) of Section 51. ( 11 ) THE Division Bench repelled the argument advanced before it that the decree would be rendered useless unless it was executed in accordance with sub- rule (5) and the Court observed that the decree had to be executed in accordance with Rule 32 (1) and merely because another mode of execution which was sought and was not available, would not render the decree useless. The counsel for the petitioner has also relied upon an authority of the Supreme Court in Municipal Corporation of Greater Bombay v. Lal Pancham, AIR 1965 SC 1008 . in support of the proposition that there are certain limitations which the law confers upon the powers of the Courts and it is duty of a Court of law not only to do justice but to ensure that justice is done only according to law and not otherwise. in support of the proposition that there are certain limitations which the law confers upon the powers of the Courts and it is duty of a Court of law not only to do justice but to ensure that justice is done only according to law and not otherwise. Reference may also be made to Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 , where the Court observed that where there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code; the prohibition contained in Code need not be express, but may be implied or be implicit from the very nature of things that it makes for covering the contingencies to which it relates. 10. Applying the dictum of the Supreme Court, it follows that a decree for injunction must be executed in the manner provided by Rule 32, and the issue of a warrant for delivery of possession in execution of a decree for injunction is not justified either by R. 35 of Order XXI or clause (e) of Sec. 51. " ( 12 ) MR. D. L. Malhotra, counsel for respondent No. 1, on the other hand, submitted that if the decree for permanent injunction is violated, the court has inherent powers to order restoration of possession by ordering the issue of warrants of possession. In this connection he relied upon sub-rule (5) of Rule 32 of Order 21 of the Code of Civil Procedure. He also referred to the decisions in Magna v. Rustam, AIR 1963 Raj 3 ; Sacthi Prasad Mukherjee v. Amar Nath Rai Chowdhury, AIR 1919 Cal 674; and Thukalan Poulo Avira v. Basselios Gheevarghese, AIR 1954 Trav Co 117. ( 13 ) BEFORE I deal with O. 21, R. 32 sub-rule (5), it may be mentioned that none of these authorities have any bearing on the facts of the present case. ( 14 ) THE Rajasthan case relates to the violation of the interim injunction issued during the pendency of the suit and it was in this circumstance that while the suit was pending the Court directed for re-delivery of the possession. ( 14 ) THE Rajasthan case relates to the violation of the interim injunction issued during the pendency of the suit and it was in this circumstance that while the suit was pending the Court directed for re-delivery of the possession. ( 15 ) THE decision given by the Calcutta High Courts again is of no help to the decree-holder. In that case the plaintiff had brought a suit for mandatory injunction for demolition of a wall in so far as it was above the height limited by a permanent injunction awarded against the defendant by a decree made in the plaintiff s favour. It was held that the suit was not maintainable and the remedy of the plaintiff was by way of an application for execution of a decree as contemplated by sub-rule (5) of Rule 32 of Order 21 of the Code of Civil Procedure. ( 16 ) THE judgment of the Travancore- Cochin, in fact, goes against the submission made on behalf of the decree-holder. In fact. the observations of Menon, J. , was that the remedy was not to apply for a further injunction from the High Court but to enforce the decree, already obtained, under Order 21, Rule 32 of the Code of Civil Procedure. ( 17 ) I have already reproduced the observations of the Full Bench of this Court while dealing with the interpretation of sub-rule (1) of Rule 32 of Order 21 of the Code of Civil Procedure. With regard to the scope of sub-rule (5) of Order 32 the Full Bench has observed in paragraphs 6 and 7 as under: "6. Sub-rule (5) of Rule 32, under which the decree-holder seeks relief, authorises the Court to 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. The statutory illustration illustrates the scope of the rule by an instance that were a person of little substance erects a building which renders a family mansion uninhabitable and the judgment- debtor, in spite of his detention in prison and attachment of property, declines to obey the decree, the Court may remove the building which the decree has directed to do and may recover the cost from the judgment-debtor in execution proceedings. This shows that the act which is authorised by sub-rule (5) to be done consists of something which may be done so far as practicable by the decree-holier himself at the expense of the judgement- debtor. The decree of the Court directing the judgment-debtor to quit and vacate the premises cannot constitute an act which may, without the will and volition of the judgment-debtor, be done by the decree-holder. Obviously, the decree-holder cannot vacate the premises in place of the judg ment-debtor and deliver its possession to himself and recover its costs. Reference may also be made to the distinction in the language of sub-rule (3) of Rule 35 and of sub-rule (5) of Rule 32; while in the former, the possession is to be delivered through its officers, in the latter the act is to be done by the decree-holder or by (and not through) another person. Consequently, obedience of the injunctions to vacate cannot be done by any officer or other person appointed by the Court as well 7. As such, the conclusion is inevitable that sub-rule (5) of Rule 32 can, in the nature of things, not come to the aid of the decree-holder to obtain dispossession of the judgment-debtor and it would be impossible to convert a suit and a decree for injunction into a suit and decree for recovery of possession and afford consequential relief in the execution department. " (emphasis supplied) ( 18 ) THEREFORE, resort cannot be had to sub-rule (5) of Rule 32 or sub-rule (1) of Rule 35 either. Since the mode of execution of a decree for permanent injunction is specifically provided for in O. 21, Rule 32 (1), no resort can be had to the inherent powers of the Court. ( 19 ) I have already quoted the observations of Supreme Court in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 , which have been noticed by Full Bench. Thus where there are specific provisions of the Code dealing with a particular topic either expressly or by necessary implication they exclude the exercise of inherent powers of the Court. ( 20 ) AS to when an order for delivery of possession can be passed, it can be gathered from the provisions of O. 21, Rule 35. There was no such decree in the present case and, therefore, no order could be passed for issue of warrants of possession. ( 20 ) AS to when an order for delivery of possession can be passed, it can be gathered from the provisions of O. 21, Rule 35. There was no such decree in the present case and, therefore, no order could be passed for issue of warrants of possession. ( 21 ) THE result is that the revision petition succeeds. The order of the executing Court dated 31st August, 1979 is, therefore, set aside. ( 22 ) ON the facts of the case the parties are left to bear their own costs of the present proceedings.