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2015 DIGILAW 1167 (HP)

Gian Chand v. Hem Raj

2015-08-26

RAJIV SHARMA

body2015
Judgment : Justice Rajiv Sharma, J. This revision petition is instituted against the order rendered by the learned Civil Judge (Sr. Divn.), Hamirpur, H.P., in C.M.A No. 26 of 2002, dated 8.6.2006. 2. “Key facts” necessary for the adjudication of this revision petition are that the father of the petitioner Sh. Malhi Ram has instituted a Civil Suit bearing No. 196/1 of 1987 on 11.9.1987 against the respondents. A compromise decree was passed on 22.4.1988. The operative portion of the judgment reads as under: “In view of the compromise arrived at today and the statements of the parties recorded, I pass a decree per terms of the compromise for permanent prohibitory injunction restraining both the parties from raising any construction, cutting any tree or changing the nature of the land compromised in Khasra Nos. 6, 59, 61, 70, 71, 85, 96, 97, 99, 106, 101, 102, 103, 104, 115, 166, 169, 173, 179, 182, 184, 186, 188, 187, 189, 190, 192, 194, 196, 197, 200, 201, 209, 210, 212, 216, 217, 222, 224, 225, 229, 232, 233, 235, measuring 128 kanals 14 marlas situated in Tika Dulana Gujran, Tappa Kuthera, Tehsil and Distt. Hamirpur, H.P, till the partition between the parties is finally sanctioned. It is further ordered and decreed that the defendants shall complete the roofing of 1/3rd of the uncovered portion of their house on an area of 15’ x 15’. The parties are left to bear their own costs.” 3. Thereafter, a decree was also drawn. The respondents instituted petition under Order 21 Rule 32 CPC before the Executing Court. According to them, the petitioner has demolished a double storyed tinposh room in the month of November-October, 2001 and constructed new house on Kh. No. 99 with lintel in violation of the decree of the Court. The suit land was not partitioned. The reply was filed by the petitioner. According to the reply filed, he was not party to the litigation and was not aware of the same. He has not raised any fresh construction. The old house which had outlived its life was demolished and new house was constructed on the old foundation. 4. The issues were framed by the Executing Court on 4.8.2003. According to the reply filed, he was not party to the litigation and was not aware of the same. He has not raised any fresh construction. The old house which had outlived its life was demolished and new house was constructed on the old foundation. 4. The issues were framed by the Executing Court on 4.8.2003. The Executing Court allowed the petition and ordered the petitioner to be sentenced to undergo civil imprisonment for a period of one month and in addition to this, his property was ordered to be attached. It is, in these circumstances, the present petition has been filed against the order dated 8.6.2006. 5. Mr. Nitin Thakur, Advocate, for the petitioner has vehemently argued that his client was not aware of the judgment and decree rendered in Civil Suit No. 196/1 of 1987. He was not a party in Civil Suit No. 196/1 of 1987. He has not willfully disobeyed the judgment and decree dated 22.4.1988. On the other hand, Mr. R.K.Sharma, Sr. Advocate, for the respondents has supported the order dated 8.6.2006. 6. I have heard the learned Advocates and gone through the pleadings and record very carefully. 7. The compromise decree was passed on 22.4.1988. The operative portion of the judgment has already been reproduced, hereinabove. A decree for permanent prohibitory injunction was passed restraining both the parties from raising any construction, cutting any trees or changing the nature of the land till the partition between the parties was finally sanctioned. Late Sh. Malhi Ram, the original plaintiff in Civil Suit No. 196/1 of 1987 was the father of the petitioner Sh. Gian Chand. 8. PW-1 Hem Raj testified that the petitioner has raised the construction in the month of October, 2001 by demolishing portion of the verandah. Thereafter, he made the pucca structure. It was situate on Kh. No. 99. He has also raised the two rooms, bath-room and balcony in the month of November, 2001. In his cross-examination, he admitted that the partition proceedings were still going on. 9. PW-2 Kamlesh Chand deposed that a new room was added after demolishing the old room in the month of October-November, 2001. Thereafter, lintel was also put over the same. Two rooms were also added, including bath-room. The spot where bath-room was raised was courtyard. The copies of the judgment and decree Ext. P-1 and P-3 were produced before the Court. 10. Thereafter, lintel was also put over the same. Two rooms were also added, including bath-room. The spot where bath-room was raised was courtyard. The copies of the judgment and decree Ext. P-1 and P-3 were produced before the Court. 10. The petitioner has appeared as RW-1. He testified that his old house was in a dilapidated condition. He has given the contract for raising construction to Kamlu. He raised the construction on the old foundation and constructed the rooms. In his cross-examination, he admitted that the partition proceedings were still pending. He has admitted that the old house was demolished in the month of October-November, 2001 and he reconstructed the same. He has not sought permission from the Court. 11. The petitioner was bound by the judgment and decree dated 22.4.1988, whereby both the parties were restrained from raising any construction till the partition proceedings were completed. It has come on record that the petitioner, despite judgment and decree dated 22.4.1988, has demolished the old structure and initially constructed one room and thereafter added two rooms, bath-room and balcony. The structure made by him is a “pucca” structure. He has admitted in his cross-examination that he has not sought the permission of the Court while raising the construction. 12. Mr. Nitin Thakur, Advocate, for the petitioner has argued that the Court has only restrained the parties from raising construction but there was no injunction for re-construction on the old one. This submission is fallacious. The Court has specifically directed the parties not to raise any construction, in any form, till the partition proceedings were completed. The language of the judgment and decree dated 22.4.1988 was plain and there was no ambiguity in the same. The construction raised after demolition of the old structure would also fall within the ambit of construction, as per the language of the judgment and decree dated 22.4.1988. The petitioner has willfully disobeyed the judgment and decree dated 22.4.1988. In his cross-examination, the petitioner has admitted that the partition proceedings were still going on. Thus, he was fully aware of the judgment and decree dated 22.4.1988. He had the opportunity to obey the judgment and decree dated 22.4.1988. He has shown scant regard for the judgment and decree by raising construction. 13. In his cross-examination, the petitioner has admitted that the partition proceedings were still going on. Thus, he was fully aware of the judgment and decree dated 22.4.1988. He had the opportunity to obey the judgment and decree dated 22.4.1988. He has shown scant regard for the judgment and decree by raising construction. 13. The learned Single Judge in the case of 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. The 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. 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. 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).” 14. In the case of Yashodabai Ganesh Naik Gaunekar vs. Gopi Mukund Naik, AIR 2003 Bombay 77, the learned Single Judge of Bombay High Court has even directed to proceed against the sons of judgment debtor in properly constituted execution proceedings. In the case of Yashodabai Ganesh Naik Gaunekar vs. Gopi Mukund Naik, AIR 2003 Bombay 77, the learned Single Judge of Bombay High Court has even directed to proceed against the sons of judgment debtor in properly constituted execution proceedings. The 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 willful 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.” 15. Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this petition and the same is dismissed.