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2015 DIGILAW 897 (RAJ)

Rameshwar Lal v. Bhanwar Lal

2015-04-22

ARUN BHANSALI

body2015
JUDGMENT 1. - This writ petition has been filed by the petitioner against order dated 10.10.2013 passed by the executing court, whereby, the application filed by the respondents has been accepted and the trial court has directed registering objections filed by the respondents separately and has stayed the proceedings in the execution case till disposal of the said objections. 2. A suit for permanent injunction was filed by the petitioner on 13.09.2004; on 16.10.2004 a compromise was filed before the trial court, inter alia, indicating that the plaintiff had purchased the suit property from defendant No. 1 through registered sale deed dated 13.06.1984, regarding which, the matter has been settled between the parties in the spirit of Lok Adalat; as per compromise, the defendants have no objection regarding the land transferred through sale deed dated 13.06.1984 whose sole owner is and would be the plaintiff, who is in possession; the defendants would not interfere in the use of 2/7 the land purchased by the plaintiff. 3. Based on the compromise dated 16.10.2004, the trial court passed the decree. 4. The petitioner filed execution proceedings under Order 21, Rule 32 CPC on 20.03.2013, inter alia, alleging that the decree holder wants to construct boundary wall around the suit property, which was being obstructed by the judgments debtors and, therefore, police protection be provided so as to enable the decree holder from raising the boundary wall; other reliefs regarding arrest; sending to civil jail and attachment of property of the defendant were also sought. 5. The respondents judgments debtors filed their objections to the execution application on 19.07.2013, which objections were replied to by the petitioner decree holder. 6. An application came to be filed by the judgments debtors that the prayer in the execution application made by the decree holder falls within the provisions of Order 21, Rule 97 (1) CPC; the judgments debtors have also filed their objections; the reply to objections may not be taken on record and if the reply to the objections is taken on record, under Order 21, Rule 97 CPC, the same needs to be registered separately and it was prayed that the application of the decree holder and the objections of the judgments debtors be decided under provisions of Order 21, Rule 97 (2) and Rule 101 CPC. 7. 7. The trial court after hearing the parties by the impugned order came to the conclusion that the objector has contended that the suit property, regarding which, decree has been passed has been sold by the decree holder to the judgments debtors 3/7 and he has received a sum of Rs. 1,25,000/- and the relief which is being sought by the decree holder pertains to plot of different Patta; the said issues cannot be decided without evidence and, therefore, the application was accepted and the objections were directed to be registered as under Order 21, Rule 97 (2) CPC and two issues were framed, on which, the matter was required to be determined by the Court and passed the directions impugned as already noticed hereinbefore regarding registering of separate case etc. 8. It is submitted by learned counsel for the petitioner that the trial court committed grave error of law in applying the provisions of Order 21, Rule 97 CPC to a decree for permanent injunction; it was submitted that the execution of the decree for permanent injunction is governed by provisions of Order 21, Rule 32 CPC and provisions of Order 21, Rule 97 CPC only pertains to decree for possession, which is not the case in the present decree and, therefore, the order impugned passed by the trial court deserves to be quashed and set aside. 9. Reliance was placed on the judgment of this Court in Legal Re-presentatives of Maga Ram and Anr. v. Kana Ram and Ors. : AIR 1993 Rajasthan 208. 10. Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioner and supported the order of the trial court; it was submitted that the trial court was justified in ordering for registering the case under Order 21, Rule 97 CPC as the prayer made by the petitioner essentially pertained to seeking possession of the land in question and, therefore, the provisions of Order 21, Rule 97 4/7 CPC were applicable to the circumstances of the case. 11. Reliance was placed on judgment of Hon'ble Supreme Court in Tanzeem E Sufia v. Bibi Haliman and Ors. : AIR 2002 SC 3083 . 12. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record. 13. 11. Reliance was placed on judgment of Hon'ble Supreme Court in Tanzeem E Sufia v. Bibi Haliman and Ors. : AIR 2002 SC 3083 . 12. I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record. 13. From the plaint (Annexure-1), the compromise (Annexure- 2), the judgment (Annexure-3) and the decree (Annexure-4) filed by the petitioner, it is apparent that the petitioner filed a suit for permanent injunction against the defendants and by way of compromise the suit was disposed of by judgment and decree dated 16.10.2004, wherein, it was directed that defendants would not interfere in the use of land purchased by the plaintiff; by way of the execution application, the petitioner alleged that the defendants were not permitting the petitioner from raising construction of boundary well around the plot in question, which amounts to violation of the decree of injunction and sought consequential relief like grant of police help, arrest of the judgments debtors and attachment of their property. 14. Provisions of Order 21, Rule 32 CPC, which pertain to execution of decree for specific performance, for restitution of conjugal rights, or an injunction provides that where the party against whom a decree for an injunction has been passed, has had an opportunity of obeying the decree and has wilfully failed to disobey it, the decree may be enforced for an injunction by his detention in civil prison, or by the attachment of his property or by both. 15. The Rule 32 further provides that where any attachment has remained in force for six months and if the judgments debtor has not obeyed the decree, on application the attached property may be sold and where the judgments debtor has obeyed the decree and paid all cost of executing the same which he is bound to pay or if the application for sale of property is not made by the decree holder, the attachment shall cease. Sub-rule 5 provides that where a decree for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes under Rule 1, 3 and 4, direct that the act required to be done may be done so far as practicable by the decree holder and upon the act being done the expenses incurred may be ascertained and the Court may direct recovery of the same as ascertained as if the same were included in the decree. 16. The explanation to Rule 32 provides that the provision covers prohibitory as well as mandatory injunctions. 17. The decree in the present case, as noticed hereinbefore, pertained to permanent injunction prohibiting the judgment debtors from interfering in petitioner's possession and use of the land in question and the allegations in the application for execution pertained to the judgment debtors disobeying the said injunction and, therefore, the application filed by the petitioner clearly fell within the provisions of Order 21, Rule 32 CPC. 18. A bare look at the provisions of Order 21, Rule 97 CPC reveals that the said provision provides for resistance or obstruction to possession of immovable property and pertains to decree for the possession of immovable property and the resistance and obstruction created by any person in obtaining possession of the property. The provisions of Rules 98 to 103 also apply to a decree for possession of immovable property. 19. From what has been noticed hereinbefore, the decree in the present case is a decree for injunction and is not for possession of immovable property. 20. In view of the above, there is substance in the arguments raised by counsel for the petitioner that the provisions of Order 21, Rule 97 CPC has no applicability to the facts of the present case. 21. 20. In view of the above, there is substance in the arguments raised by counsel for the petitioner that the provisions of Order 21, Rule 97 CPC has no applicability to the facts of the present case. 21. It would be seen that the execution application filed by the petitioner was resisted by the respondents while raising several objections; the executing court while deciding the prayer made by the judgments debtors for registration of the application as a proceedings separate from the execution application has observed that the objection raised give rise to certain issues, which are required to be decided by the executing court; the objection raised in an execution application under Order 21, Rule 32 CPC no doubt are required to be decided before the decree is put in execution or any order as envisaged by Order 21, Rule 32 CPC is passed by the executing court, but for that purpose it cannot be said that the provisions of Order 21, Rule 97 CPC would be attracted and the executing court would be required to undertake the procedure of framing of issues and leading of evidence by the parties on the said aspect; the proceedings under Order 21, Rule 32 CPC can be determined by way of summary procedure based on the affidavits of the parties and the material available on record and there is essentially no necessity to undertake the procedure as envisaged under Order 21, Rule 97 CPC, which even otherwise, only pertains to decrees for possession of immovable property and has no application to decree for injunction. 22. So far as the judgment cited by learned counsel for the respondents in the case of Tanzeem E Sufia (supra) is concerned, in the said case admittedly the decree pertained to possession of the premises indicated therein and in that context the judgment was delivered by Hon'ble Supreme Court, wherein, it was held that application seeking delivery of possession may be treated as an application under Order 21, Rule 97 CPC, which was exceeded to by Hon'ble Court. 23. As already pointed out hereinbefore, provisions of Order 21, Rule 97 CPC are applicable to the decree for possession of immovable property and have no applicability to a decree of injunction and, as such, the judgment has no application to the facts of present case. 24. 23. As already pointed out hereinbefore, provisions of Order 21, Rule 97 CPC are applicable to the decree for possession of immovable property and have no applicability to a decree of injunction and, as such, the judgment has no application to the facts of present case. 24. In view of the above discussion, the writ petition is allowed; the order dated 10.10.2013 passed by the trial court is set aside; the application filed by the respondents seeking registration of the separate proceedings is rejected and the executing court is directed to proceed with the execution application filed by the petitioner as expeditiously as possible.Petition allowed. *******