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1988 DIGILAW 535 (KAR)

MUDUKAPPA HANUMAPPA HADAPAD v. DAVALAWWA

1988-12-01

M.P.CHANDRAKANTARAJ

body1988
CHANDRAKANTHARAJ, J. ( 1 ) THIS is a decree-holder's revision under section 115 C. P. C. He sued for execution of decree obtained by him in O. S. No. 164 of 1965. The said compromise decree was passed on 22-6-86. One of the terms of the compromise decree was that the land bearing sy. No. 86 belonging to plaintiff and sy. No. 87/1 belonging to the defendants shall be got surveyed and then the parties shall get their titles declared. The final result of the survey will be binding on both the plaintiffs and the defendants. We may not refer to other terms as it is not necessary to do so. ( 2 ) THE defendant, after the compromise decree was drawn up, filed execution petition against the plaintiff in Execution Petition no. 83 of 1967. In that proceeding, a surveyor was appointed at her instance for surveying the land as per the compromise decree. Surveyor submitted his report. The defendant did not agree with the commissioner's report as she contended it was full of errors. She got the execution petition disposed of on 24-6-1969, despite the objections by the present revision petitioner who was the Judgment debtor in that execution proceedings. He did not question that disposal. ( 3 ) THEREAFTER, in 1978, he presented execution petition No. 5 of 1978 seeking attachment of the properties of the defendant for disobedience of the decree in terms of Rule 32 of O. 21 C. P. C. The original defendant resisted the same inter alia contending that there was no final adjudication. There was no injunction by the Court which she had disobeyed. That contention has been upheld by the executing court and the execution petition has been dismissed. These facts are not in dispute. ( 4 ) THE question is, whether the learned counsel appearing for the decree-holder Mr. Kulkarni is correct in contending that the failure on the part of the defendant to get the land measured amounts to disobedience of an injunction of the Court. The context in which the expression 'injunction' is used in rule 32 of Order 21 CPC leaves no one in doubt as to what that expression means. Three types of court directives contained in decrees are referred to therein. They are a decree for restitution of conjugal rights, a decree for specific performance of a decree and disobedience of an injunction. Three types of court directives contained in decrees are referred to therein. They are a decree for restitution of conjugal rights, a decree for specific performance of a decree and disobedience of an injunction. The code specifically provides for presenting suits for injunction in terms of provisions contained in specific Relief Act. Therefore, injunction must be understood in the context of that term being employed both in the provisions of the C. P. C. as well as the provisions of the Specific Relief Act. Normally understood, the injunction is a directive of the Court restraining some person or persons from doing something, which is prejudicial to the interest of the plaintiff or applicant who moves the Court. Even a mandatory injunction is only a command to undo what has been wrongfully done frustrating the rights of the plaintiff. If that is the correct meaning of the word 'injunction' occurring in Rule 32 of the C. P. C. then the compromise decree did no more than direct the parties to get the disputed lands measured and thereafter settle their dispute in accordance with the measurement resulting from the survey. If the respective rights to the properties in dispute in the suit did not result in a final adjudication by the Court, at any stage, the compromise decree remains no more than the pious wishes of the parties to that decree and there is nothing which is enforceable by one against the other. ( 5 ) THEREFORE, the only course open to the decree-holder in Execution Petition 5/78 was to file a fresh suit seeking an injunction restraining the defendant on the basis of their possession of the suit schedule properties whether survey was made or not, as that matter was not concluded in any earlier proceeding. Therefore, invoking Rule 32 of order 21 was clearly impermissible and the executing court has correctly rejected the petition. ( 6 ) THE petition is therefore dismissed. --- *** --- .