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2017 DIGILAW 1141 (GAU)

Md. Habibur Rahman v. Malay Bhusan Kaur

2017-08-21

PRASANTA KUMAR DEKA

body2017
JUDGMENT AND ORDER : 1. Heard Md. MH Choudhury, learned counsel for the petitioner and Mr. KK Dey, learned counsel for the respondents. 2. In this revision petition, the order dated 06.02.2013 passed in Title Execution Case No. 3/1998 by the court of learned Civil Judge No. 2, Cachar at Silchar has been challenged. 3. Against the present petitioner/judgment debtor (for short, ‘JD’), an ex-parte decree was passed in favour of the respondents/decree holders (for short, ‘DHs’) was put to execution in Title Execution Case No. 3/1998. The said decree was with respect to the declaration of the decree holders as the occupancy tenant in respect of land covered by Schedules 2 and 3 and for confirmation of possession. Further, a decree of permanent injunction was also passed in favour of the decree holders thereby restraining the present petitioner/JD from disturbing the possession of the decree holders on the decreetal land. On perusal of the Schedules 2 and 3 of the decree passed in Title Suit No. 26/1984, it is seen that the said schedules are shown to be vacant land and defined by boundaries. The decree holders after passing of the decree, instituted the Title Execution Case No. 3/1998. In the said execution proceeding, an application under Order XXXIX Rule 2A of the Code of Civil Procedure (for short, ‘CPC’) was filed by the decree holders informing the executing court that the petitioner/JD had violated the decree of permanent injunction. However, executing court without deciding the allegation of violation of the decree of permanent injunction rejected the said application on the ground of its maintainability. The said petition was rejected vide order dated 21.08.2012. Thereafter, the decree holders/respondents preferred an application under Order VI Rule 17 of the CPC with a prayer to amend the schedule of the decreetal property by introducing the direction to demolish the standing structures like C.I. Sheet house and other articles with the help of the police. The said prayer for amendment was objected by the present JD/petitioner. The executing court vide order dated 06.02.2013 allowed the said amendment of the original execution petition fixing 11.03.2013 for amendment and necessary orders. Being aggrieved by the said order, the petitioner/JD preferred this revision petition. 4. Mr. Choudhury, learned counsel for the petitioner, submits that the said application under Order VI Rule 17 of the CPC is not maintainable. The executing court vide order dated 06.02.2013 allowed the said amendment of the original execution petition fixing 11.03.2013 for amendment and necessary orders. Being aggrieved by the said order, the petitioner/JD preferred this revision petition. 4. Mr. Choudhury, learned counsel for the petitioner, submits that the said application under Order VI Rule 17 of the CPC is not maintainable. The executing court must confine itself to the decree. In this case, the decree is for permanent injunction restraining the petitioner from interfering with the possession of the decree holders. If any new fact and/or any new cause of action accrued to the decree holders owing to violation of the said decree, the same must be proved and then only after formal order, the same could be executed. On one hand, the violation application under Order XXXIX Rule 2A of the CPC was rejected by the executing court on the ground of its non maintainability, on the other hand, the executing court has permitted to execute the decree by way of modifying the relief so granted. As such, the executing court has exceeded its jurisdiction by passing the said impugned order dated 06.02.2013. Accordingly, Mr. Choudhury submits that the impugned order be set aside. 5. Opposing the submissions of Mr. Choudhury, Mr. Dey, learned counsel for the respondents, submits that in true sense, the decree holders are not seeking any amendment of the decree rather, they sought for its execution by way of police help. The executing court is well within its jurisdiction to allow the execution by the police help and there is no bar in the discretion so applied by the executing court. Accordingly, Mr. Dey submits that there is no need for interference by this court. 6. Considered the submissions of both the learned counsels. The situation is that an ex parte decree favouring the decree holders with the relief of permanent injunction restraining the petitioner/JD from interfering with the possession of the Schedules 2 and 3 land described in the decree over the decreetal property which is still in force. On perusal of the order passed by the executing court dated 21.08.2012 shows that an allegation with regard to the violation of the decree of permanent injunction is made against the petitioner/JD. On perusal of the order passed by the executing court dated 21.08.2012 shows that an allegation with regard to the violation of the decree of permanent injunction is made against the petitioner/JD. It is very much apparent from the said order itself that the said fact of violation has not been entered into by the executing court on its merit. Rather, the said application was rejected on the ground of its maintainability. The decreetal property described in the decree is apparently a vacant plot of land without there being any standing structures. From the amendment petition it is seen that there are standing structures over the decreetal second and third schedule of land purportedly alleged to be constructed by the judgment debtor/petitioner. Under Order XXI Rule 32 of the CPC, the mode of execution of a decree of permanent injunction has been stipulated as follows:- “(1) where the party against whom a decree for the specific performance of contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced by his detention in the civil prison, or by the attachment of his property, or by both.” 7. In order to invoke the said provision under XXI Rule 32 of the CPC for execution of a decree for a permanent injunction, a duty is cast upon the executing court at least to come to a finding with regard to the disobedience and the subsequent acts of violation of the said decree by the judgment debtor. In the present case in hand, on one hand, the application under XXXIX Rule 2A of the CPC was rejected and on the other hand, the executing court had allowed to amend the schedule of the decree and its mode of execution by taking police help and demolishing the standing structures including the houses thereon the decreetal property. This is totally a contradictory finding of the executing court. It is true that the decree for permanent injunction cannot be treated to be a mere paper decree. It must have its force of enforceability through court. 8. This is totally a contradictory finding of the executing court. It is true that the decree for permanent injunction cannot be treated to be a mere paper decree. It must have its force of enforceability through court. 8. In the case of Aainuddin Dewan v. Haran Ali & others reported in 2000 (2) GLT 121 this court held that it is the duty and responsibility of the court to see that an order of injunction passed by it is meticulously implemented and followed, otherwise an order of injunction will be a mere paper tiger without having the force to bite which is not the purpose for granting an order of injunction. An order of injunction creates certain rights and liabilities between the parties and that order of injunction must be enforced by the court by passing necessary order. This is also necessary to shorten the litigation inasmuch as if that is not done, by executing a decree for perpetual injunction, a person may be put in possession on a particular date and on the next date, by using muscle power the defendant may again take back the possession of the land. In such a situation, a person so dispossessed is not to go again for a fresh round of litigation to establish his right, and to get the order for recovery of possession. He can approach the court by filing necessary application under section 151 of the CPC to obtain an order for restoration of possession and the court in such a situation, can always give back/restore the possession. 9. The approach of the decree holders was not wrong while moving the application under Order XXXIX Rule 2A of the CPC. However, the court failed to invoke the jurisdiction merely because the same was the executing court. In fact, the executing court and the trial court are the same and the one. Under such circumstances, the court ought to have registered the application assuming the jurisdiction of the trial court and accordingly, ought to have disposed of it even by invoking jurisdiction under Section 151 of the CPC by registering a miscellaneous case. But the manner in which the executing court has allowed the amendment vide the impugned order, that cannot be accepted. But the manner in which the executing court has allowed the amendment vide the impugned order, that cannot be accepted. Accordingly, the said order dated 06.02.2013 passed in Title Execution Case No. 3/1998 by the court of learned Civil Judge No. 2, Cachar at Silchar is set aside. The decree holders are at liberty to file fresh application whereafter the same be disposed of as per the observations made by this court. Accordingly, this revision petition succeeds to that extent and the same is disposed of. 10. Interim order passed earlier shall stand vacated.