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2015 DIGILAW 1012 (HP)

Rupa alias Rup Singh v. Kashmir Singh

2015-08-04

RAJIV SHARMA

body2015
Judgment Justice Rajiv Sharma, J. This petition is instituted against the order dated 4.6.2007 rendered by the Civil Judge (Senior Division), Hamirpur in C.M.A. No. 177 of 2000 in Civil Suit No. 264 of 1995. 2. “Key facts” necessary for the adjudication of this petition are that petitioner (hereinafter referred to as the “decree holder” for convenience sake) instituted a suit against the predecessor-interest of respondentsjudgment debtors late Sh. Mohar Singh and Sanjeev Kumar for permanent injunction and also suit for damages of Rs. 2,000/- in respect of land comprising Khata No.7, Khatauni No.9, Khasra Nos. 116/2, 118, 120, 121/1 and 125 plots 5 measuring 1 kanal 13 marlas situate in village Bari, Mauza Dhaned, Tehsil and District Hamirpur on the basis of Jamabandi for the year 1993-94. The suit was contested by the defendants, namely, Mohan Singh and Sanjeev Kumar. Issues were framed by the Senior Sub Judge on 26.8.1996. The suit was decreed vide judgment and decree dated 15.3.2000. Senior Sub Judge gave a findings that plaintiff was owner of the land on the basis of partition and the defendants were unnecessarily interfering in his possession. Thus, decree of permanent injunction was passed in favour of the plaintiff vide judgment and decree dated 15.3.2000. 3. Mohar Singh died on 1.12.2000. His legal heirs were brought on record on 8.10.2003. Decree holder filed execution petition under order 21 rule 32 of the Code of Civil Procedure against the predecessor-in-interest of judgments debtors Mohar Singh, Sanjeev Kumar, Vijay Kumar and Rakesh Kumar sons of Amru on the ground that they have virtually occupied the land comprised in Khasra Nos. 118, 120, 121/1 and 125. They have willfully disobeyed the decree passed by the court dated 15.3.2000. Judgment debtors were interfering with the possession of the decree holder. 4. Reply was filed by the judgment debtors. According to the reply filed, judgment debtors were in possession of the suit land and before them, Mohar Singh was in possession of the same. 5. Rejoinder was also filed by the decree holder. The Executing Court dismissed the application on 4.6.2007. Hence, the present petition. 6. I have heard the learned counsel for the parties and have gone through the pleadings carefully. 7. Judgment and decree is dated 15.3.2000. Decree for permanent injunction was passed in favour of the decree holder. Judgment debtors started inferring with the possession of the decree holder. The Executing Court dismissed the application on 4.6.2007. Hence, the present petition. 6. I have heard the learned counsel for the parties and have gone through the pleadings carefully. 7. Judgment and decree is dated 15.3.2000. Decree for permanent injunction was passed in favour of the decree holder. Judgment debtors started inferring with the possession of the decree holder. Plaintiff has appeared as PW-1. According to him, decree was passed on 15.3.2000. When he was sowing the maize crop in the month of June, 2000, respondents threw stones in his filed. He requested them to remove the same, but they refused to do so. 8. PW-2 Samsher Singh has deposed that Rajinder, Sohan and Sudershana have thrown the stones. PW-3 Roshan Lal was examined to prove the demarcation. The demarcation was conducted in the year 2001. According to his version, the encroachment made by the judgment debtors was detected. PW-4 Subhash Chand has also deposed that judgment debtors have thrown the stones in the fields and have also started cutting the grass. 9. Kashmir Singh has appeared as RW-1 and has denied the allegations of violation. RW-2 Sarvjit Singh has also denied the allegations made against them. 10. The Executing Court has brushed aside the statements of PW-1 Rup Singh, PW-2 Samsher Singh and PW-3 Roshan Lal and has come to a wrong conclusion that decree holder has failed to prove that judgment debtors have willfully disobeyed the judgment and decree dated 15.3.2000. PW-3 Roshan Lal has proved that during demarcation, it was found that judgment debtors have encroached upon the suit land. It was not necessary for the judgment debtor to place on record the demarcation report. Decree holder has specifically stated that in the month of June, 2000, judgment debtors have started interfering with his possession. Judgment debtors knew about the judgment and decree dated 15.3.2000. In reply to petition under order 21 rule 32 of the Code of Civil Procedure they have asserted that they are in possession of the suit land. Mohar Singh has died during the pendency of the execution petition and his legal heirs were brought on record. Mohar Singh and Sanjeev Kumar were already party in the civil suit No. 264 of 1995. Judgment debtors have willfully disobeyed the judgment and decree dated 15.3.2000 and the findings recorded by the Executing Court are liable to be set aside. Mohar Singh has died during the pendency of the execution petition and his legal heirs were brought on record. Mohar Singh and Sanjeev Kumar were already party in the civil suit No. 264 of 1995. Judgment debtors have willfully disobeyed the judgment and decree dated 15.3.2000 and the findings recorded by the Executing Court are liable to be set aside. Judgment debtors themselves have admitted that they are in occupation of the suit land, which plea is contrary to the judgment and decree dated 15.3.2000. Judgment debtors have violated the judgment and decree dated 15.3.2000 with impunity/willfully. They had actual and constructive knowledge of the judgment and decree dated 15.3.2000 and despite that they have violated the same. 11. Learned Single Judge in Kathiyammakutty Umma vs. Thalakkadah Kattil Karappan and others, AIR 1989 Kerala 133 has held that decree for injunction obtained against sole judgment debtor restraining from obstructing the plaintiff in erecting a fence on the boundary of his property can be executed against the legal representatives on the death of original judgment debtor. Learned Single Judge has held as under: “[4] Section 50 of the Code of Civil Procedure (for short 'the Code') enables the holder of a decree to execute the same against legal representatives of the deceased judgment-debtor. In Such execution, the decree holder is subject to a restriction in Sub-section (2) that the execution shall only be to the extent of the property of the deceased which has come to the hands of the legal representative. The limitation imposed by Sub-section (2) applies generally in cases of money decrees. In the case of a decree of injunction, the modes of execution are prescribed in Order 21, Rule 32 of the Code. Sub-rule (1) enables the decree holder to enforce the decree by detention of the judgment-debtor in the civil prison or by attachment of his properties or by both. Sub-rule (5) is an additional mode to be followed in execution of the decree for injunction. There is no inhibition in Rule 32 that the modes of execution prescribed therein cannot be exercised against the legal representatives of the judgment-debtor. In other words, what is permitted in Section 50 of the Code is not denied or even curtailed in Order 21, Rule 32. There is no inhibition in Rule 32 that the modes of execution prescribed therein cannot be exercised against the legal representatives of the judgment-debtor. In other words, what is permitted in Section 50 of the Code is not denied or even curtailed in Order 21, Rule 32. Section 146 of the Code enables taking of proceedings or making of applications against any one who claims under the person against whom such proceedings or applications could have been taken or made. The right conferred in Section 146 is not in any way restricted by Order 21, Rule 32. Hence it is not open to the legal representative of the judgment-debtor in a decree for injunction to contend that he is not liable under the decree. There is no dispute in this case that the judgment-debtors had right over the property which lies near the property in respect of which the decree for injunction was granted. The suit was filed in view of the boundary dispute over the respective properties. The boundary claimed by the plaintiff was upheld in the suit and hence the decree was passed by the trial court. In such a case, law does not impose any inhibition on the decree holder in executing the decree for injunction, after the death of the original judgment debtor against the legal representatives claiming under the said judgment-debtor. [5] The decision in Jamsetji Manekji Kotval's case ((1908) ILR 32 Bom 181) has not been followed by the Bombay High Court in later decisions. AIR 1931 Bombay volume contains three decisions on this subject which are helpful in deciding the point of dispute in this revision. In Amritlal' v. Kantilal, AIR 1931 Bom 230 a Division Bench held that though a decree for injunction cannot be enforced against the surviving members of a joint family or against a purchaser from a judgment-debtor, such a decree can nevertheless be executed where the sons of the judgment-debtor were brought on record as his legal representatives by virtue of Section 50 of the Code. In Manilal v. Kikabhai, AIR 1931 Bom 482 a single Judge of the Bombay High Court following the aforesaid decision had held that, where a decree for injunction had been obtained against the father, the son not being joined as a party, and if the father died during the pendency of execution proceedings, the decree could be enforced under Section 50 of the Code against the son as his legal representative. In Ganesh v. Narayan, AIR 1931 Bom 484 another Division Bench of the same High Court followed the decision in Amritlal's case (cited supra).” 12. In Yashodabai Ganesh Naik Gaunekar vs. Gopi Mukund Naik, AIR 2003 Bombay 77, learned Single Judge of Bombay High Court has even directed to proceed against the sons of judgment debtor in properly constituted execution proceedings. Learned Single Judge has held as under: “[12] With regard to the execution and/or implementation of the decree of permanent injunction is concerned, it appears that the civil imprisonment had no effect on the judgment debtor. He was detained in civil prison for fifteen days. He suffered the said detention, but did not amend his attitude and ventured to commit successive breaches of the decree of injunction. The effective order against him could be by attachment of his property and in the event of persistent breach and the sale thereof. If no property is available for attachment, and if the judgment-debtor persists in committing deliberate and wilful breach of the permanent injunction, he may again be detained in civil prison, depending upon the gravity of the breach committed by him. Nobody can be allowed to take law in his own hands. Rule of law must prevail. The Executing Court is not helpless to take action against the sons in properly constituted proceeding if the Executing Court finds that the sons of the judgment-debtor are abetting the breach of the decree for permanent injunction. If courts fail to get their orders implemented, the people will lose faith in the judiciary. The Executing Court is directed to deal with the situation with stern hands and prevent breach of the decree of permanent injunction.” 13. Accordingly, in view of the analysis and discussion made hereinabove, the petition is allowed. Order dated 4.6.2007 is set aside. The Executing Court is directed to execute the judgment and decree dated 15.3.2000 strictly in accordance with law. Accordingly, in view of the analysis and discussion made hereinabove, the petition is allowed. Order dated 4.6.2007 is set aside. The Executing Court is directed to execute the judgment and decree dated 15.3.2000 strictly in accordance with law. Parties through their counsel are directed to appear before the Civil Judge (Senior Division), Hamirpur on 21.8.2015. Pending application(s), if any, also stands dismissed. No costs.