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Madhya Pradesh High Court · body

2012 DIGILAW 480 (MP)

Toran Singh v. Imrat Singh

2012-05-03

SUJOY PAUL

body2012
ORDER 1. In his petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 12.7.2007(Annexure P-5), whereby the execution proceedings are closed by the Court below. Brief facts necessary for adjudication of this matter are as under : (1) The petitioner filed a suit for declaration and permanent injunction against the respondents. The said suit was registered as Case No.57-A/1995. The Court below decided it by judgment dated 22.4.1999 (Annexure P-1). The Court below declared the petitioner as “Bhumiswami” of land in question and issued a permanent injunction in favour of the petitioner restraining the respondents with the direction that they shall not interfere in the possession of the petitioner. The respondents assailed the said judgment by filing an appeal No.66-A/1999. The appellate Court affirmed the order passed by the trial Court. The respondents unsuccessfully assailed it by filing second appeal before this Court which was registered as Second Appeal No.14/2000. The second appeal was dismissed by Annexure P-3. 2. The petitioner filed an application for execution of decree on 19.5.2007 (Annexure P-4). The respondents filed their reply, Annexure P-9.The Court below by order 12.7.2007 closed the exection proceedings for following reasons:- No.(i) : As per Khasra entries from 1998-99 to 2002-2003 (Col. No.12) it is admitted fact that the competent revence Court had cancelled the allotment in favour of the petitioner on which judgment and decree was passed. No. (ii) : The petitioner had filed the suit for declaration and permanent injunction. He did not pray for any relief of grant of possession. Thus, execution Court cannot travel beyond the judgment and decree. 3. Shri Amit Lahoti, learned counsel for the petitioner by placing reliance on various provisions of Code of Civil Procedure and judgments of various Courts, submits that the order passed by the Executing Court is bad in law and is perverse in nature. 4. On the countary, Shri Yogesh Chaturvedi by placing reliance on AIR 1983 A.P. 64 (P. Venkata Kasi Viswanadam vs. Vallabha Vyas) and 1998 (i) JLJ 403 = (1998) 2 SCC 510 (State of MP vs Mangilal Sharma), submits that the order passed by the executing Court is in accordance with law. He submits that this is settled in law that executing Court cannot add, alter or travel beyond the relief claimed and granted in the judgment and decree. He submits that this is settled in law that executing Court cannot add, alter or travel beyond the relief claimed and granted in the judgment and decree. He submits that the petitioner had not chosen to file the suit for possession and, therefore, he cannot claim possession by filing execution proceedings. By placing reliance on 2011 (4) MPLJ 656 (Anil Kumar vs. Afzal Anees). Shri Chaturvedi Submits that this petition is not tenable and petitioner has a remedy under section 115 of the Code of Civil Procedure to file a revision. The contention of Shri Yogesh Chaturvedi is that under section 250 of M. P. Land Revenue Code the petitioner has a remedy for restitution of possession. Thus, an alternative remedy is available to the petitioner. By relying on the language of section 51 CPC it is further argued that power to enforce execution is there where the Court has “specifically ordered to do something”. In the present case, as argued, since there is no direction to hand over possession, execution proceeding was not tenable. 5. I have heard learned counsel for the parties and perused the record. 6. So far reason No. (i) aforesaid is concerned, the khasra entry, Annexure P - 10, shows that the petitioner’s allotment is cancelled pursuant to S.D.O.’s order passed in Case No.42 v-e- /87 -88 dated 29.11.1995. The stand of the respondents before the trial Court was that by Ex.D/6 in the Case No. 42 v-e- /87 -88 dated 29.11.1995 the S.D.O. cancelled the allotment, which were in favour of six persons, which includes the alloment in favour of present petitioner. The trial Court gave a specific finding that the aforesaid allotment order Ex.D/6 does not contain the name of present petitioner. The allotment was made in favour of petitioner by a separate order dated 29.7.1987 Ex.D/7. A specific finding was given by the trial Court that the allotment in favour of present petitioner is not cancelled and is still in existence. This finding of fact given by the trial Court was unsuccessfully challenged by the present respondents before the appellate Court and then before this Court in second appeal. As stated above, both the Courts have affirmed the judgment of tria Court on merits and, therefore, the said finding, in absence of any further challenge, has attained a finality. This finding of fact given by the trial Court was unsuccessfully challenged by the present respondents before the appellate Court and then before this Court in second appeal. As stated above, both the Courts have affirmed the judgment of tria Court on merits and, therefore, the said finding, in absence of any further challenge, has attained a finality. In khasra entries of Annexure P-10, the entry was made on the basis of S.D.O.’s order, Ex.D/6. Once in the judgment of trial Court it is made clear that Ex.D/6 does not deal with the allotment with regard to petitioner, the said entry cannot have any adverse impact on the petitioner. Even it is erroneously mentioned in the khasra entries, it will not have any effect of wiping out of the finding of the trial Court affirmed by this Court. Thus, in my considered opinion, the executing Court has committed an error in relying on Col. No.12 of entry of the khasra. Thus, this point needs to be decided in favour of the petitioner. This Court is of the considered opinion that the point No.(i) is decided by the executing Court in an erroneous manner and said finding runs contrary to the specific finding given in the judgment of the civil suit. Accordingly, I have no hesitation to hold that this finding of executing Court is perverse in nature and cannot be a reason to close the execution proceeding. As per Order 21 Rule 28. CPC, the order of the Court by which decree is passed is binding upon the Court to which the decree was sent for execution. 7. Reason No. (ii) : So far the contention that the petitioner had chosen to file a suit for declaration and permanent injunction and not a suit for possession, the executing Court cannot travel beyond the judgment is concerned, it would be profitable to refer to certain relevant provisions of the Code. 8. 7. Reason No. (ii) : So far the contention that the petitioner had chosen to file a suit for declaration and permanent injunction and not a suit for possession, the executing Court cannot travel beyond the judgment is concerned, it would be profitable to refer to certain relevant provisions of the Code. 8. Order 21 Rule 32(1)(5) reads as under:- “(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced (in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the process aforesaid, 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, an upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.” 9. By amendment dated 1.7.2002 (Act 22 of 2002), the explanation is added below Order 21 Rule 32 C.P.C., which reads as under:- “Explanation,- for the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.” (Emphasis supplied). 10. The main defence of the judgment-debtor is that the suit was only for declaration and permanent injunction and it was not for possession and, therefore, in execution proceedings the trial Court cannot travel beyond what had been prayed and granted. 11. It is relevant to notice here that the trial Court in its judgment has given a specific finding that petitioner is in possession and accordingly directed that his right of possession be not distrubed and a permanent injunction in this regard was issued. 11. It is relevant to notice here that the trial Court in its judgment has given a specific finding that petitioner is in possession and accordingly directed that his right of possession be not distrubed and a permanent injunction in this regard was issued. On the cost of repetition, it may be noticed that this finding of trial Court was affirmed till this Court. Thus, this fact cannot be disputed that the allotment with regard to the petitioner was not disturbed and petitioner was in possession. Thus, in view of the aforesaid findings with regard to allotment and possession in favour of the petitioner, if petitioner claims enforcement of judgment and decree, the question is, whether he can seek enforcement of this nature of decree in execution proceedings. Before dealing with the matter any further, it is profitable to notice the report of Law Commission which persuaded the Parliament to include the aforesaid explanation in C.P.C. The relevant portion of recommendation of Law commission reads as under:- “8.1.12 Recommendation - Clarification is obviously needed on the point at issue. It is suggested that as a matter of legislative amendment, it is preferable to incorporate the wider view (though the majority of the High Courts have taken a contrary view) and to provide that the words “act required to be done” cover prohibitory (as well as mandatory) injunctions. This would aslo be in conformity with S.3(2), General Clauses Act, 1987 which provides that in all Central Act, the words “act” includes illegal omissions. Besides this, on the merits, there is also justification why a decree-holder should be driven to a separate suit for getting relief in the nature of enforcement of a decree which he must have obtained after considerable expenditure of time, labour and money”. 12. A bare perusal of the recommendation shows that the intention was to adopt wider view to cover prohibitory as well as mandatory injunctions. Interestingly, this recommendation was made by Law Commission even contrary to the views taken by various High Courts before such recommendation. It was felt necessary to include that explanation in the interest of justice so that decree holder should not be driven to a separate suit for getting relief in the nature of enforcement of a decree which will ultimately save his time, labour and money. It was felt necessary to include that explanation in the interest of justice so that decree holder should not be driven to a separate suit for getting relief in the nature of enforcement of a decree which will ultimately save his time, labour and money. Once the said recommendation is translated in reality by including it in C.P.C. by way of explanation, the basic question is whether petitioner can succeed on the strength of existing provision, i.e., Order 21Rule 32(1)(5), read with explanation. In the opinion of this Court, the executing Court has power and jurisdiction to pass any order to see that the decree is enforced and implemented and it is obeyed by the judgment-debtor. Even a decree of a permanent prohibitory injunction needs to be enforced as per the said explanation. If the judgment-debtor had gained possession on the decree holder’s property by violating decree, said judgment-debtor needs to be expelled by the executing Court by exercising power under Order 21 Rule 32 or by exercising inherent powers under section 151of C.P.C. 13. In my considered opinion, the Court below has given specific finding regarding allotment of land in favour of the petitioner which had not been cancelled, coupled with the finding that the petitioner is in possession. On the strength of these findings, the permanent injunction was granted with further direction not to disturb the petitioner from the possession. If contrary to aforesaid judgment and decree, judgment-debtor had disturbed and gained possession, it amounts to defeating the decree passed by the Court below. Thus, it has to be held that the judgment-debtor forcibly dispossessed the plaintiff in violation of order of injunction and took possession of the property. The executing Court has ample jurisdiction to prevent the decree being flouted and to do justice to the plaintiff by putting back the plaintiff in possession of the property. This Court finds support from the following judgments : (i) Ram Charan Sikarwar v. Smt. Jogamaya Casu, AIR 1978 Cal 193 . (ii) Hari Nandan Agrawal and another v. S.N. Pandita, AIR 1975 A/48. (iii) Magna v. Rustam, AIR 1963 Raj. 3 . (iv) Surjit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220 . (v) Delhi Development Authority v. Kipper Construction Co. (P) Ltd. (1996) 4 SCC 622 . ( AIR 1996 SC 2005 ). (vi) Ajaya kumar v. Damayanthi (2004) 2 Ker Lt 48. (iii) Magna v. Rustam, AIR 1963 Raj. 3 . (iv) Surjit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220 . (v) Delhi Development Authority v. Kipper Construction Co. (P) Ltd. (1996) 4 SCC 622 . ( AIR 1996 SC 2005 ). (vi) Ajaya kumar v. Damayanthi (2004) 2 Ker Lt 48. (vii) Century Flour Mills Ltd. v. S. Suppiah, AIR 1975 Mad. 270 (FB). (viii) Parukutty Amma v. Thankamma Amma (1988) 1 Ker LT 883. (ix) State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647 . (x) Thukalan Poulo Avira v. Mar Basselios Cheevarghese, AIR 1954 Trav Co. 117. (xi) Krishna v. Joseph Desouza, 1985 Ker LtT 1010 ( AIR 1986 Ker 63 ). (xii) Mohammad v. Mohammed Haji, 1986 Ker LT 134. (xiii) Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 . (xiv) Hamsa v. George (1995) 2 Ker LT 326 (1995) AIHC 6153). (xv) Mohd. Idris v. Rustam Jehangir Bahuji (1984) 4 SCC 216 ( AIR 1984 SC 1826 ). (xvi) Thazhapattathillath Krishnan Namboodiri and others v. Thazhapattathillath Damodaran Namboodiri (Died) by L. R. and etc. AIR 2005 Ker 328 14. In AIR 1975 Madras 270 (FB), the Full Bench of the High Court held that order 39 of C.P.C. should not be considered as placing any limit on the scope of inherent power under section 151 which are wide and not subject to any limitation. Whenever there is any violation of an order or injunction against party, or something has been done in disobedience, it will be the duty of the Court to put the clock back to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power of the Court will not only be available in such cases, but it is bound to be exercised in that manner in the interest of justice. The same view was taken in Surjit Pal v. Prabir Kumar Sun AIR 1986 Calcutta 220 and Hari Nandan Agrawal and another v. S. N. Pandita AIR Allahabad 482. 15. I will be failing in my duty if I do not mention that there were conflicting views expressed in various decisions of various High Courts regarding applicability of Order 21 Rule 32 in respect of decrees of prohibitory injunction. 15. I will be failing in my duty if I do not mention that there were conflicting views expressed in various decisions of various High Courts regarding applicability of Order 21 Rule 32 in respect of decrees of prohibitory injunction. Some of the High Courts took a view that Sub Rule (5) of Rule 32 of order 21 cannot be invoked to enforce a decree of prohibitory injunction, while some Courts have taken contrary view. However the controversy can be said to be put to rest by bringing the explanation below Sub Rule (5). The statement of objects and reasons of C. P. C. (amendment) Act, 2002 makes the position clear that the explanation of Rule 32 was added on the basis of the report of Law Commission. Thus, the intention of the Parliament and legal mandate is to implement the prohibitory injunctions in execution proceedings. 16. On the basis of principles of law laid down by various High Courts, there is no doubt that the executing Court is not justified in closing the matter about delivery of possession on a hyper technical ground that decree for prohibitory injunction cannot be enforced in the manner prayed by the decree holder. The decision is bad in law and if this decision is permitted to stand, it will lead to a situation of lawlessness and the decree holder will be compelled to file another suit for possession. This is not the intention of order 21 Rule 32 (5) and the explanation. The duty of the Court is so see that the inherent power are exercised when needs to be exercised, otherwise the litigant will loose faith in Court and they may resort to other illegal short cuts than approaching the civil Court. 17. Same view is taken by Punjab and Haryana High Court in judgment reported in AIR 2007 Punjab and Haryana 54 (Banwarilal v Municipal Committee, Kanina). On the basis of aforesaid analysis, I am unable to uphold reason (ii) given by the Court below. Thus, this reason is liable to be disallowed. 18. 17. Same view is taken by Punjab and Haryana High Court in judgment reported in AIR 2007 Punjab and Haryana 54 (Banwarilal v Municipal Committee, Kanina). On the basis of aforesaid analysis, I am unable to uphold reason (ii) given by the Court below. Thus, this reason is liable to be disallowed. 18. So far the issue regarding maintainability of this petition on the basis of 2011 (4) M.P.L.J. 565 (Anil Kumar vs. Afzal Anees) is concerned, proviso to Section 115 C.P. C. reads as under:- Proviso “Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.” 19. In the present case, the execution proceedings is dismissed on the objection filed by the judgment-debtor and against this order writ petition is preferred. If the objection of the judgment-debtor before the executing Court would have been rejected, the effect would be continuance of the execution proceedings. In other words, upon rejection of objections of judgment-debtor, execution proceedings would have remained pending and some consequential orders like notice for attachment or imprisonment etc. would have been passed. Thus, execution proceedubgs, in any case, would have remained pending if objections of judgment-debtor would have been rejected. Thus, the judgment in Anil Kumar (Supra) make it clear that it was filed judgment-debtor against rejection application under section 47 of C.P.C. The objections were turned down by the executing Court and therefore, he filed the writ petition, Had those objections been decided in favour of the judgment-debtor then the execution proceeding would have been finally terminated or disposed of and under those circumstances the revision was rightly held to be maintainable by this Court, where as in the present case if the order of executing Court would have been made in favour of the present petitioner, it would not have the effect of finally disposing of the suit or other proceedings. Thus, for petitioner, I am unable to hold that remedy is under section 151 C.P.C. and accordingly unable to hold that writ petition is not maintainable. 20. Thus, for petitioner, I am unable to hold that remedy is under section 151 C.P.C. and accordingly unable to hold that writ petition is not maintainable. 20. So far the maintainability under the M.P.L. R.C. is concerned, even if that remedy is available, petitioner had a valuable right to file execution and such execution proceeding was legally maintainable and, therefore, petitioner cannot be thrown out on this issue. 21. Shri Yogesh Chaturvedi, learned counsel for the respondents relied on certain judgments where in it is held that the executing Court cannot travel beyond the scope of decree. Those judgments are passed in peculiar facts and circumstances of those cases. In the present case, as discussed in detail, in the light of the explanation and provisions of the C.P.C., it is clear that even the permanent and prohibitory injunctions can be enforced in this matter. This interpretation, in my considered opinion, is in consonance with the recommendation of Law Commission, aim and object of the explanation pursuant to which Parliament thought it proper to bring the explanation in the C.P.C. On the basis of above camulative reasons, I have no hesitation to set aside the order impugned (Annexure P - 5) dated 12.7.2007. 22. Consequently, the said order is set aside. The executing Court is directed to proceed further in the matter in accordance with law. The petition is allowed. No cost. ....................