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2015 DIGILAW 458 (UTT)

RAJU BHATT v. RISHIRAM @ RISHIRAJ

2015-09-17

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present petition is filed assailing the judgment and order dated 10th February, 2015 passed by the Executing Court/Civil Judge (Jr. Div.), Rishikesh as well as judgment and order dated 3rd September, 2015, passed by Additional District Judge, Rishikesh, whereby Executing Court was pleased to dismiss the objection filed by the judgment debtor/petitioner, herein, and was further pleased to issue warrant of possession and revision arising therefrom was dismissed by the Revisional Court. 2. Brief facts of the present case, inter alia, are that plaintiff/decree-holder had filed OS No. 05 of 1996, Rishiram v. Sohan Lal Kukreti and others, in the court of Civil Judge (Jr. Div.), Rishikesh, Dehradun seeking permanent prohibitory injunction restraining the defendants in making any interference in the possession of the plaintiff over the suit property under heading ‘A’ and ‘B’; suit was decreed by the learned Trial Court, vide judgment and decree dated 17.07.2004; judgment and decree dated 17.07.2004 was never challenged before the higher Forum, hence, was allowed to attain finality; plaintiff/decree-holder has moved an execution application being Execution Case No. 07 of 2009 saying defendant/judgment-debtor has forcefully taken possession over the Southern portion of the suit property, therefore, decree dated 17.07.2004 may be executed against the judgment-debtor; having appeared before the Executing Court, judgment-debtor has preferred objection saying that the basis of suit i.e. sale deed dated 19.07.1965 was void ab initio and non est in the eyes of law, therefore, decree passed in Suit No. 05 of 1996 was without jurisdiction, therefore, cannot be executed; objection so filed by the judgment-debtor/petitioner, herein, was dismissed by the Executing Court, vide order dated 10.02.2015; while rejecting the objection, learned Executing Court was further pleased to issue warrant of possession; feeling aggrieved, judgment-debtor has preferred civil revision being Civil Revision No. 33 of 2015, however, revision too came to be dismissed, vide judgment/order dated 03.09.2015; feeling aggrieved, judgment-debtor has knocked the doors of this Court by invoking Article 227 of the Constitution of India. 3. I have heard Mr. Neeraj Garg, learned counsel for the judgment-debtor/petitioner, herein, and have carefully perused the record as well as the relevant provisions of law. 4. Mr. 3. I have heard Mr. Neeraj Garg, learned counsel for the judgment-debtor/petitioner, herein, and have carefully perused the record as well as the relevant provisions of law. 4. Mr. Neeraj Garg, learned counsel appearing for the petitioner, has vehemently argued that even if it is presumed that judgment-debtor has encroached upon piece of suit land in violation of the decree passed in Suit No. 05 of 1996, Order 21 Rule 32 CPC does not empower the Executing Court to issue warrant of possession, therefore, decree-holder, if so advised, may file suit for possession. Further contends that since, no decree was passed by the Trial Court either for mandatory injunction or for possession directing dispossession of the judgment-debtor from any part of suit property, therefore, warrant of possession ought not to have been issued. 5. Section 51 of the Code of Civil Procedure reads as under: “51. Powers of court to enforce execution.- Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree holder, order execution of the decree— (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons recorded in writing, is satisfied— (a) that the judgment debtor, with the object or effect of obstructing or delaying the execution of the decree,— (i) is likely to abscond or leave the local limits of the jurisdiction of the Court. or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account. Explanation : In the calculation of the means of the judgment debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.” 6. Language of Section 51 of the Code is unambiguous, plain and simple. As per the mandate of Section 51, Executing Court, subject to such conditions and limitations as may be prescribed, may execute the decree in one of the following manners : (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require. 7. In other words, an Executing Court may execute the decree for prohibitory injunction by delivery of any property specifically decreed or; by attachment and sale or sale without attachment of the property of the judgment-debtor or; by arrest and detention of judgment-debtor in civil prison or; by appointing a receiver or; in such other manner as the nature of the relief granted may require. 8. Decree for permanent mandatory injunction can be put for execution by invoking Order 21 Rule 32 CPC. 8. Decree for permanent mandatory injunction can be put for execution by invoking Order 21 Rule 32 CPC. If Order 21 Rule 32 is read with Section 51 of CPC, it can safely be held that decree for permanent mandatory injunction can be executed by attaching and selling the properties of the judgment-debtor; by arresting and detaining the judgment-debtor in civil prison or in other such manner as the nature of the relief granted may require. 9. It is not disputed either before both the courts below or before me that judgment-debtor/petitioner has not taken possession of any part of the suit property after the decree was passed. Therefore, if judgment-debtor takes possession in violation of the decree for permanent prohibitory injunction, it will not be open to the judgment-debtor to say that new cause of action has arisen, therefore, decree-holder should file fresh suit for possession and decree cannot be executed by issuing warrant of possession. None can be permitted to take forceful possession by violating the prohibitory injunction decree. In my considered view, if judgment-debtor enters into the possession of the property by violating the prohibitory injunction decree, he shall be liable to be dispossessed forthwith by using such force as executing court deems fit. 10. Therefore, no interference is called for. Petition is devoid of merits, hence, is dismissed. 11. CLMA No. 10938 of 2015 also stands disposed of accordingly.