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2003 DIGILAW 792 (PNJ)

Inder Singh v. Dharma

2003-05-22

HARJIT SINGH BEDI

body2003
JUDGMENT H.S. Bedi, J. (Oral) - The present writ petition has been filed against the order of the Sub Judge, Ist Class, Jhajjar dated 19.1.1988 whereby he has dismissed the application under Order 21 Rule 32 of the Code of Civil Procedure, holding that it was open to the decree holder to file a fresh suit to seek possession. 2. The facts of the case are that Nand Lal son of Shanker (Predecessor-in- interest of the petitioners) filed a suit for permanent injunction against the present respondents Dharma, Rajinder and Tara Chand pleading that they were interfering in his possession in Kila No. 61/13. The said suit was decreed vide judgment and decree dated 5.10.1985. The appeal filed by the respondents against the said decree was also dismissed on 7.8.1986. It appears that on 8.9.1986 while the decree holder was cutting the crop on the suit land Tara Chand aforesaid interfered in his possession. An application aforesaid was accordingly filed by the legal heirs of Nand Lal for a direction that the judgment debtors be sent to jail for having violated the terms of the decree. Tara Chand, one of the judgment debtors, controverted the application and stated that he was in possession of Kila No. 61/13 and that the petitioner being the legal heirs of Nand Lal were not entitled to any relief on the basis of the decree passed against him and that if they felt aggrieved by any action on his part they were at liberty to file a suit for possession. He also placed on record a copy of the Jamabandi for the year 1985-86 and Khasra Girdawri for the relevant period of show his possession. The Executing Court observed that a decree for permanent injunction had been made in favour of Nand Lal on 5.10.1985 and that the judgment debtors had been restrained from interfering in the possession of the decree holders in various Kila Nos. including Kila No. 61/13. It has further observed that the decree had been violated in respect of Kila No. 61/13 and not all the Khasra Nos. but it appeared that the decree holders were no longer in possession of Kila No. 61/13 and as the Court could not go beyond the decree, it was not possible to issue a direction under Order 21 Rule 32 of the Code of Civil Procedure. but it appeared that the decree holders were no longer in possession of Kila No. 61/13 and as the Court could not go beyond the decree, it was not possible to issue a direction under Order 21 Rule 32 of the Code of Civil Procedure. The petitioner was accordingly left with the remedy to file a fresh suit. This petition was filed in the year 1988 and was ordered to be heard within three months. It is being heard after fifteen years. Mr. S.S. Ahlawat, the learned counsel for the petitioner has argued that once it had been found that the decree of a civil had been violated by the judgment debtor, the Court had no option but to make an order under Order 21 Rule 32 of the Code of Civil Procedure. 3. I have heard the learned counsel and carefully gone through the order of the Executing Court. It is the admitted position that the decree restraining the respondents from interfering in Nand Lals possession had been made on 5.10.1985. It is apparent from the record that for the very same period i.e. 1985-86, the Jamabandi shows the possession of Tara Chand over Kila No. 61/13. There is, therefore, clear merit in the petitioners stand that the decree had been violated by Tara Chand on 8.9.1986 i.e. soon after the decree in the civil suit had been made in favour of Nand Lal. The Executing Court, to my mind, was in error in expressing its helplessness in the matter and directing the decree holder to file a fresh suit for possession. It is clear that in case a direction of permanent injunction is violated by a judgment debtor, the Executing Court has the jurisdiction to pass an order on an application under Order 21 Rule 32 of the Code of Civil Procedure to restore the possession of the land in dispute to the decree holder. This has been held by the Honble Supreme Court in Samee Khan v. Bindu Khan" 1998(2) PLJ, and by this Court in "Ram Singh v. Sukh Ram" 1989 PLJ 719, Dalip Kaur v. Bant Kaur" 1991 PLJ 341 and "Harbans Singh and another v. Daulat Ram and others" (1993-2) PLR 399. In view of the above, the order dated 19.1.1988 is clearly unsustainable and it is, accordingly set aside. 4. In view of the above, the order dated 19.1.1988 is clearly unsustainable and it is, accordingly set aside. 4. The matter is remanded to the Executing Court, which shall, after hearing the parties, pass an order in a manner which is most beneficial to the decree holder. The respondent shall also be burdened with costs, which are quantified at Rs. 10,000/- and the same shall be paid to the petitioner before the Executing Court. 5. Parties are directed to be present before the Executing Court on 10.9.2003. Copy of the order be given dasti. Order accordingly.