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Rajasthan High Court · body

1989 DIGILAW 859 (RAJ)

Mohan v. Rohitas

1989-11-23

I.S.ISRANI

body1989
JUDGMENT 1. - This revision petition has been filed under Section 115 C.P.C. against the order dated May 21, 1989 payed by learned Munsiff cum-Judicial Magistrate 1st Class Khetri in execution application No. 4/89 Rohitas & Ors. Vs. Mohan and Ors, whereby compliance of order dated Sept.5, 1988 passed by the same court was requested. The trial court had accepted a temporary injunction application (No. 173/87) and petitioner-defendants were restrained from interfering with the installation of pump-set on the we11 in dispute. 2. Non-pelitioner plaintiffs filed a civil suit against the defendants- petitioners in the court of Munsiff & Judicial Magistrate Khetri stating therein that there is a well in agricultural land bearing Khasra No 2967. It was further stated that the non-Petitioner -plaintiffs are owners and in possession of the agricultural land alongwith well situated therein. They had been cultivating the agricultural land since long. They had purchased an engine to install the same on the said well for irrigating the field by taking water from the well but the petitioner-defendants were not allowing them to do so. The non petitioners also moved an application under Order 39 Rule l & 2 CPC. The non-petitioner-defendants also moved an application claiming the land and the well to be in their possession and further alleging that they were cultivating the same. After hearing bath the parties the trial court passed order Dated September 5, 1988 by which application for issue of temporary injunction against the petitioner-defendants was accepted and they were restrained from opposing/creating obstacles against the plaintiff-non-petitioners in installing the pumping set on the disputed well. 3. On May 21, 1989 plaintiff-non-petitioners filed an execution application before the trial court alleging that the defendant-non-petitioners were not allowing the plaintiff non-petitioners to install the pumping set on the well. It was prayed that the compliance of the order of the court be made and a Commissioner may be appointed to get the order dated September 5, 1988 executed. Thereupon the learned trial court passed an order dated May 12, 1989 by which a Commissioner was appointed to go to the site and get the pumping set installed on the well situated in Khasra No. 2967. 4. The contention of Shri Sajjan Singh learned counsel for the petitioner- defendants is that the plaintiff-non-petitioners cannot legally move any execution application in the trial court for execution of the impugned order. 4. The contention of Shri Sajjan Singh learned counsel for the petitioner- defendants is that the plaintiff-non-petitioners cannot legally move any execution application in the trial court for execution of the impugned order. It is contended that the temporary injunction has been issued under the provisions of Order 39 Rule 1 and 2 C.P.C. and if the same is not obeyed the only remedy available to the plaintiff-non-petitioners is to file application under Rule 2-A of Order 39 for contempt of the order of the Court. Therefore the court can punish the non petitioner-plaintiffs for disobedience of the order of the Court as provided in Rule 2-A of Order 39 C.P.C. Unless a decree has been passed by the trial court in favour of the non-petitioner-plaintiffs no execution can be filed merely against an order. 5. It is contended by Shri M. M. Ranjan learned counsel for the non- petitioner-plaintiffs that Section 6 C.P.C. has been substituted by Amending Act No. 104 of 1976 and word order' now appears in the same. Therefore the trial court has rightly directed to execute the impugned order. Reliance has been placed on (1) Venkat Niloba Kabade Vs. Kishan Dadarao Dhumal 1983 Mab. L.J. 1105=(1984)l Bom. C.R. 74. 6. I have heard both the parties and also gone through the impugned order of the trial court. 7. The plaintiff-non-petitioners filed a suit in the trial court in which an application under Order 39 Rule 1 and 2 C.P.C. was also filed. After hearing both the parties the trial court directed that the petitioner-defendants themselves or through anyone else should not put any obstacles in installation of pump set on the well situated in land bearing Khasra No. 2967 and further they should not put any impediment/obstacles in use of the water pump so installed by the plaintiff- non-petitioners in accordance with the order passed by the Court. This order was passed on September 5, 1988. Since the petitioner-defendants did not allow the plaintiff/non- petitioners to install the pump set on the well an application for execution of the order was filed in the trial court. The trial court thereupon directed 'hat a Commissioner be appointed to get the order of the Court dated September 5, 1988 executed who should go on the site and get the pumping set of the non-petitioner-plaintiffs installed on the well situated in Khasra No. 2967. 8. The trial court thereupon directed 'hat a Commissioner be appointed to get the order of the Court dated September 5, 1988 executed who should go on the site and get the pumping set of the non-petitioner-plaintiffs installed on the well situated in Khasra No. 2967. 8. Section 36 was substituted with a view to clarify the provisions relating to the execution of a decree or order including payment under a decree or order as well. It is evident that the principle underlying the provisions of this section is that every Court has inherent power to have its order carried out as otherwise the orders would be mere farce. The word 'execution' means enforcement of decrees or orders by process of Court, so as to enable the judgment-creditor to reap the fruits of the judgment or orders passed by the court in his favour. Therefore it cannot be said that the word execution' is relevant only so far as the execution of decree is concerned. The modes in which the Courts can execute their decrees and orders are set forth in Part lI and elaborated in Order 21 C.P.C. Clause (14) (1 of Section 2 C P.C. defines the meaning of Order'. The -order' means a formal expression of any decision of Civil Court which is not a decree. The word -Order' as observed by the Apex Court in (2) Vidyacharan Shukhala Vs. Khubchand Bagel and AIR 1964 SC 1099 is analogous to a decree and does not imply what is popularly understood namely the view expressed by a Judge on the merits of the case before him and his decision thereon. It may be stated as a general rule that an order by a court of law is founded on objective consideration and as such the judicial order must contain discussion of the question at issue and the reasons which prevailed with the court to pass the order. 9. The order dated September 5 1988 is in details and the trial court has discussed the merits and the demerits before granting temporary injunction in favour of the plaintiff-non-petitioners. Similar situation was considered in case of Venkat Niloba Kabade (supra) in which an interim mandatory injunction was issued in favour of the plaintiff and he applied for execution of the sad order. Similar situation was considered in case of Venkat Niloba Kabade (supra) in which an interim mandatory injunction was issued in favour of the plaintiff and he applied for execution of the sad order. The trial court made an order directing the defendants to deliver possession within 24 hour of the receipt of order at the first instance and if be failed to comply possession warrant was directed to be issued. The order was challenged in revision on the ground that only remedy open to the plaintiff is under Order 39 Rule 2 (A) read with Order 21 Rule 32 (I) C.F C. and it was contended that the plaintiff can have resort to the relief against the defendant either by attachment of the movable property of the defendant or by putting the defendant in jail. It was held that in view of the fact that Section 36 of the Code of Civil Procedure is amended by Act No. 104 of 1976 the provisions relating to execution of decrees shall be deemed to apply for execution of orders. It could not be disputed that Order 21 Rule 35 of the Civil Procedure Code lays down the procedure for execution of decree for possession. Now by virtue of Section 36 of the amendment Civil Procedure Code the same procedure will be applicable for execution of order. The order made by the Trial Court therefore did not warrant any interference and was proper. 10. I am therefore of the considered opinion that the Court is not powerless in getting its orders/temporary injunction executed if the sAme are disobeyed. The procedure provided under Rule 2-A-of Order 39 C P.C. spells out the treatment punishment to be meted out to the person who disobeys the order of the Court and is held guilty of disobedience. This does not in any way mean that the court cannot take any other action to get its orders enforced. Such power is inherent in the court and the court can get its order executed and in required situation can provide police help to the person in whose favour the injunction in the mandatory form has been issued to see that the order passed by the court is carried out. 11. I therefore do not find any reason to interfere with the under of the trial court and the revision petition is therefore dismissed.Revision dismissed. *******