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2016 DIGILAW 229 (ORI)

Baishnab Charan Palei v. Padmanav Rout

2016-03-22

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 30.9.2010 passed by the learned District Judge, Keonjhar in C.R.P.No.1 of 2010. By the said order, the learned revisional court rejected the application of the judgment-debtor-petitioner to stay the further proceeding of the Execution Case No.24 of 2008 of the court of the learned Civil Judge (Sr. Division), Keonjhar. 2. The opposite parties as plaintiffs instituted C.S.No.65 of 2005 in the court of the learned Civil Judge (Sr. Division), Keonjhar for declaration of right, title, interest in respect of the suit schedule land, recovery of possession and permanent injunction impleading the petitioner as defendant. The learned trial court decreed the suit on 10.12.2007. Thereafter the decree was drawn up on 21.12.2007. The ordering portion of the judgment reads as follows:- “The suit is decreed in part on contest against the defendant without costs. The right, title and interest of the plaintiffs in respect of the suit plot is declared and their possession in respect thereof is confirmed. The defendant is permanently restrained from interfering with the possession of the plaintiffs in respect of the suit plot in any manner whatsoever.” 3. While the matter stood thus, the opposite parties levied Execution Case No.24 of 2008 for delivery of possession of suit property through process of court. The petitioner filed a show cause stating therein that since no recovery of possession was granted, the decree holders can execute the decree of permanent injunction and, as such the petition is not maintainable. The learned trial court came to hold that when a decree for right, title, interest and confirmation of possession has been passed, execution petition for recovery of possession can be made. Held so, the learned executing court allowed the application on 27.2.2010. Challenging the same, the petitioner filed C.R.P. No.1 of 2010 before the learned District Judge, Keonjhar. In the said case, the petitioner filed an application to stay the further proceeding of the execution case. By order dated 30.9.2010, the revisional court dismissed the said application. With this factual scenario, the present petition has been filed. 4. Criticizing the order, Mr.Samantaray, learned counsel for the petitioner submitted that the learned trial court has not passed any decree for recovery of possession. In view of the same, the executing court cannot go behind the decree and direct the Court Amin to recover possession from the petitioner. With this factual scenario, the present petition has been filed. 4. Criticizing the order, Mr.Samantaray, learned counsel for the petitioner submitted that the learned trial court has not passed any decree for recovery of possession. In view of the same, the executing court cannot go behind the decree and direct the Court Amin to recover possession from the petitioner. The suit schedule land is not identifiable. The learned revisional court committed a manifest illegality in rejecting the application of the petitioner to stay the further proceeding of the execution case since the same will render the revision application infructuous. He cited the decisions in the case of Sri Biswanath Sahoo and others Vrs. Sri Manoj Tanmay Mohan and others, AIR 2006 Orissa 94, M/s. Century Textiles Industries Ltd. Vrs. Deepak Jain and another, 2009 (I) OLR (SC)-731 and Bijaya Kumar Swain Vrs. Harekrushna Nayak, 2008 (Supp.2) OLR 800. 5. Per contra, Mr.Panigrahi, learned counsel for the opposite parties supported the order passed by the learned District Judge, Keonjhar. He relied on the decisions of this Court in the case of Biswanath Vrs. Smt. Uttara Bewa and others, AIR 1988 Orissa 9, Gopal Barik Vrs. Bhima Barik and another, 1993 (I) OLR 139 and Chhatia Palei and another Vrs. Additional District Judge-cum-Sessions Judge, Nayagarh and others, 2009 (I) OLR 983 . 6. In Biswanath (supra), this Court held that ordinarily the executing court cannot go behind the decree. But it is within the competence of the executing court to interpret the decree sought to be executed and for doing so the court can refer to reliefs sought in the plaint and discussion in the judgment to ascertain the true import of the decree. The same view was taken in Gopal Barik (supra) and Chhatia Palei (supra). 7. The decisions cited by Mr.Samantaray, learned counsel for the petitioner in the case of Sri Biswanath Sahoo (supra), M/s. Century Textiles Industries Ltd. (supra) and Bijaya Kumar Swain (supra) are distinguishable on facts. 8. In Jai Dayal and others Vrs. Lal Garg and another, AIR 1997 SC 3765 , the appellant had filed the Suit No.1023/61 against the respondent for perpetual injunction and also for mandatory injunction restraining him from blocking passage of 5ft. between the house of the appellant and that of respondents and for removal of the obstruction. The suit was decreed. The decree was confirmed by the appellate court. between the house of the appellant and that of respondents and for removal of the obstruction. The suit was decreed. The decree was confirmed by the appellate court. When the appellants had filed an application for execution under Order 21, Rule 32 C.P.C. in Execution Case No.2903/65, the respondent had removed the obstruction and, consequently, the execution case was struck out. The order was upheld by the appellate court. Subsequently, a shop was constructed. The same had completely blockade the passage. Thereafter the appellant again filed an execution application under Order 21, Rule 32 C.P.C.. The executing court had directed to remove the obstruction completely. On appeal, the learned Additional District Judge confirmed the same. In the execution second appeal, the learned Single Judge reversed the decree and remitted the matter back. Thereafter, the petitioner approached the Supreme Court. The Supreme Court in paragraph-6 of the report held that once the decree of perpetual injunction and mandatory injunction has become final, the judgment-debtor is required to obey the decree. In whatever from he obstructs, it is liable to removal for violation and the natural consequence is the execution proceedings under Order 21, Rule 32 C.P.C. It was further held that having allowed the perpetual injunction and mandatory injunction granted by the trial Court to become final, it would be no defence for the respondent to plead that he has not obstructed the passage etc. or that, a part of the property in which the present shop was constructed was not a part of the property in the original suit. If a judgment-debtor has suffered the decree, no attempt to circumvent the perpetual injunction and mandatory injunction, can be permitted. The decree holder can not be pushed to another round of litigation. In the second suit, the same will amount to encouraging the persons to take the law into their own hands and drive the decree-holder to another suit. It can never be facilitated to circumvent the law and relegate the party for tardy process of the civil action. The ratio in the case of Sri Biswanath (supra) and Jai Dayal (supra) applies with full force to the facts of this case. 9. On a cursory perusal of the decree quoted supra, it is manifest that no express direction was made by the learned trial court for delivery of possession of the suit land to the plaintiffs. The ratio in the case of Sri Biswanath (supra) and Jai Dayal (supra) applies with full force to the facts of this case. 9. On a cursory perusal of the decree quoted supra, it is manifest that no express direction was made by the learned trial court for delivery of possession of the suit land to the plaintiffs. The plaintiffs have prayed inter alia for declaration of right, title, interest of suit property, recovery of possession and permanent injunction. The learned trial court declared the title of the plaintiffs over the suit schedule land and granted permanent injunction. The Court did not feel it necessary to direct recovery of possession in view of its finding that the plaintiffs have failed to establish the fact that the defendant has encroached upon an area of Ac.0.03 dec. as per the sketch map from out of the suit plot. Prayer for recovery of possession was specifically refused. The decree attained finality. In view of the same, no recovery of possession can be made to the petitioner. But then, the learned trial court came to a definite finding that the defendant is threatening to encroach upon some portion of the plaintiffs’ land and creating trouble with their possession. The defendant has been permanently restrained from interfering with the possession of the plaintiffs in respect of the suit land. In view of the same, it is open to the decree holders to execute the decree in accordance with provisions of Order 21, Rule 32 C.P.C. The petition is disposed of with the aforesaid observations. No costs.