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2019 DIGILAW 1192 (HP)

Karam Chand v. Bishan Singh

2019-08-20

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, petitioner has prayed for the following relief:- "It is therefore, most respectfully prayed that this petition may kindly be allowed and the impugned orders dated 22.11.2018 and 05.12.2018 contained in Annexure P-2 and P-3 passed by the Ld. Civil Judge Court No. 2, Nalagarh, District Solan H.P may kindly be quashed and set aside and the petition may kindly be allowed and the appropriate directions be issued to the Ld. Trial Court accordingly, in the interest of justice for which the petitioners shall every pray." 2. Brief facts necessary for the adjudication of the present petition are that respondent No. 1 and predecessor-in-interest of respondent No. 2 filed a suit for grant of a decree for permanent prohibitory injunction restraining the defendants therein from interfering in any manner, changing the nature, raising construction and creating any passage in and over the suit land comprised in Khasra Nos. 372 and 373, Khewat No. 137, Khatauni No. 227 and 228, area measuring 0-18 biswas in village Majra, H.B. No. 97, Pargana Plassi, Tehsil Nalagarh, District Solan, H.P. (hereinafter referred to as the 'suit land'). Petitioners herein as also the proforma defendants were the defendants in the said suit. 3. This suit, i.e. Civil Suit No. 202/1 of 09/2008, titled as Sh. Bishan Singh and another versus Sh. Karam Chand and others, was decreed by the Court of learned Civil Judge (Jr. Division), Nalagarh, District Solan, HP, in the following manner:- "This suit coming on this day before me (Hitender Kumar) Civil Judge (Jr. Div.) Nalagarh for final disposal in the presence of Sh. B.S. Ranu, Advocate for the Plaintiffs and Sh. H.C. Thakur, Advocate for Defendants/counter claimants. It is ordered that suit filed by the plaintiff is decreed and defendants are restrained from interfering in any manner, changing the nature, raising construction and creating any passage in and over the suit land comprised in khsra No. 372 and 373, khewat No. 137, khatauni No. 227 and 228 area measuring 0-18 biswas, situated in village Majra, H.B. No. 97, Pargana Plassi, Tehsil Nalagarh, District Solan, H.P. The counter claim filed by the defendant is dismissed. However, in the peculiar facts and circumstances of the case, parties are left with to bear their own cost(s)." 4. However, in the peculiar facts and circumstances of the case, parties are left with to bear their own cost(s)." 4. It is evident from the decree passed by the learned Trial Court that a Counter Claim filed by the defendants was dismissed by the said Court. It is not in dispute that the judgment and decree so passed by the learned Trial Court was unsuccessfully challenged by the defendants before the learned Appellate Court and thereafter, said judgment and decree so passed by learned Trial Court, has attained finality. 5. An application was filed by the decree holders under Order 21, Rules 10, 11 and 32 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'Code') before the learned Executing Court for the execution of the above referred judgment and decree in September, 2015. It was mentioned in the application that judgment debtors, impleaded as respondents No. 1 to 7 in said execution petition, had forcibly dispossessed the decree holders on 13.4.2014 from the land in dispute measuring 0-03 biswas, situated upon khasra No. 372 and had raised a kachha room thereupon after passing of the decree, execution of which was sought. 6. In the objections filed to the execution petition, contesting judgment debtors, which includes the present petitioners, took the stand that the decree holders were not entitled for the execution of the decree as the suit land measuring three biswas was under the possession of judgment debtors and decree holders, not being conversant with their land, had not taken any demarcation from the competent authority and in fact, the decree was obtained by the decree holders by concealing material facts from learned Civil Court. 7. Vide order dated 22.11.2018 (Annexure P-2), learned Executing Court directed the judgment debtors to deliver the possession of the suit land to the decree holders, which was followed by order dated 05.12.2018 (Annexure P3), which reads as under:- "Heard. Possession as per last order not handed over. Relevant provision of execution is as under- 32. 7. Vide order dated 22.11.2018 (Annexure P-2), learned Executing Court directed the judgment debtors to deliver the possession of the suit land to the decree holders, which was followed by order dated 05.12.2018 (Annexure P3), which reads as under:- "Heard. Possession as per last order not handed over. Relevant provision of execution is as under- 32. Decree for specific performance for restitution of conjugal rights, or for an injunction:- (1) Where the party against whom a decree for the specific performance of a 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 in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. Opportunity for obeying the decree has already been granted. JDs have willfully failed to obey the decree. As such this Court forced to enforce the decree by attachment of the property of the JDs. Let property of JDs be attached on or before 19.01.2019. List of immovable property be filed within 5 days." 8. Feeling aggrieved, petitioners have filed the present petition assailing Annexures P-2 and P-3. 9. Learned Counsel for the petitioners has argued that the orders impugned are not sustainable in the eyes of law because learned Executing Court has erred in not appreciating that the decree passed in favour of decree holders was only to the effect that the defendants stood restrained from interfering in any manner, changing the nature, raising construction and creating any passage in and over the suit land and there was no decree in favour of decree holders entitling them to seek possession of the suit land from the judgment debtors. 10. 10. On the other hand, learned Senior Counsel appearing for the contesting respondents/decree holders has argued that as the possession of the suit land was forcibly taken over by the judgment debtors after passing of the decree by the learned Civil Court whereby defendants were restrained from interfering in any manner, changing the nature, raising construction and creating any passage in and over the suit land, there was no infirmity with the orders passed by the learned Executing Court as the decree holders were entitled to have the decree executed even by way of issuance of a direction to the judgment debtors to hand over the possession of the suit land to the decree holders if it stood established on record that possession of the suit land was forcibly taken over by the judgment debtors after the passing of the decree of injunction. 11. In rebuttal to the said contention of the learned Senior Counsel, learned Counsel for the petitioner has argued that the decree holders could not have been given the relief of possession of land by the learned Executing Court and the course open for the decree holders was to file a suit for possession. 12. I have heard learned Counsel for the parties and also gone through impugned orders as also other documents appended with the petition. 13. It is not in dispute that vide judgment and decree dated 31.07.2010, suit for permanent prohibitory injunction qua the suit land filed by the plaintiffs was decreed and counter claim for permanent prohibitory injunction filed by the defendants was dismissed by learned Trial Court. It is also not in dispute that the judgment and decree so passed by the learned Civil Court has attained finality. It has not been disputed during the course of the arguments before this Court that the possession of the suit land was taken over by the judgment debtors including the petitioners after the passing of the decree somewhere in the year 2014. 14. It has not been disputed during the course of the arguments before this Court that the possession of the suit land was taken over by the judgment debtors including the petitioners after the passing of the decree somewhere in the year 2014. 14. In these circumstances, the moot issue which this Court has to decide is whether in a case where a decree of injunction has been passed against the defendants restraining them from inter alia interfering in any manner with the suit land, whether a decree holder in the execution of the said judgment and decree can be granted the relief of possession of the suit land if it stands proved that the suit land was forcibly taken into possession by the judgment debtors after passing of the said decree? 15. In order to answer this question, the Court has to holistically perceive the events which led to the filing of the execution petition. In a suit filed by the decree holder against the judgment debtors, a decree was passed by the learned Court whereby defendants were restrained from interfering in any manner in changing the nature, raising construction and creating any passage in and over the suit land comprised in Khasra Nos. 372 and 373, Khewat No. 137, Khatauni Nos. 227 and 228, area measuring 0-18 biswas, situated in village Majra, H.B. No. 97, Pargana Plassi, Tehsil Nalagarh, District Solan, H.P. Suit was decreed as the plaintiffs succeeded in proving before the learned Court that they were owners in possession of the suit land and the defendants, without any right, title or claim over the same, were causing illegal interference upon the suit land. Once the Court of competent jurisdiction passed the said decree in favour of the decree holders and said judgment and decree attained finality, defendants/judgment debtors were bound to obey the same. However, the judgment debtors disobeyed the judgment and decree so passed in favour of the decree holders by dispossessing decree holders from the suit land after passing of the said decree. This led to the filing of the execution petition. 16. However, the judgment debtors disobeyed the judgment and decree so passed in favour of the decree holders by dispossessing decree holders from the suit land after passing of the said decree. This led to the filing of the execution petition. 16. In my considered view, the contention of learned Court for the petitioners that learned Executing Court could not have had directed the petitioners/judgment debtors to deliver the possession of the suit land and that the decree holders should have been called upon by the learned Executing Court to file a suit for possession, is not sustainable in the eyes of law. Once the decree holders were successful in obtaining a decree for permanent prohibitory injunction against the defendants, the defendants/judgment debtors had no business to disobey the said judgment and decree. After the judgment debtors had the occasion to obey the judgment and decree, yet they disobeyed the same, then the decree holders had the right to approach the Executing Court for the execution of the said judgment and decree. In the course of the execution of the judgment and decree, learned Executing Court was within its jurisdiction to issue the direction to the judgment debtors to deliver the possession of the suit property, which judgment debtors had forcibly taken into possession after passing of decree against them by disobeying the same. 17. In such like situation, where the judgment debtors disobey the decree of permanent prohibitory injunction passed against them by gaining illegal possession of the suit property, decree holders cannot be asked to file a fresh suit for possession by the Executing Court. This would be too harsh a call and would not only defeat the ends of justice but also set a wrong precedent wherein a judgment debtor can openly flout and disobey the decree passed against him and yet the Executing Court would not be in a position to execute the judgment and decree passed by it. 18. This would be too harsh a call and would not only defeat the ends of justice but also set a wrong precedent wherein a judgment debtor can openly flout and disobey the decree passed against him and yet the Executing Court would not be in a position to execute the judgment and decree passed by it. 18. Of course, if the judgment debtor encroaches upon some other portion of the property of the decree holder which was not the subject matter of the suit, then the things would be different and in that situation, the decree holder would have to file a suit for possession but with regard to suit property, qua which, there is a decree in favour of the decree holders and against the judgment debtors for permanent prohibitory injunction, the decree holders need not file a fresh suit for possession if the decree holders are dispossessed by the judgment debtors after the passing of the judgment and decree and the possession can be ordered to be delivered to the decree holders by the judgment debtor by the Executing Court in the course of execution of said decree. This, in my considered view, would be a prudent interpretation of the provisions of Order 21, Rule 32 of the Civil Procedure Code in general and Sub Rule (5) of Rule 32, including the Explanation appended thereto in particular. 19. In similar circumstances, High Court of Punjab and Haryana in Kapoor Singh v. Om Prakash, (2009) AIR(P and H) 188, has held that the Executing Court has the jurisdiction to pass an order on the application under Order 21, Rule 32 (5) of the Civil Procedure Code to restore the possession of the land in dispute to the decree holder in case decree of permanent injunction is filed by the judgment debtor. It has been held further that the decree holder is not required to file another suit as he has already obtained a decree in his favour by spending much time and expenses and law lies in favour of the interpretation which would prevent multiplicity of the proceedings rather than the one which will generate it. 20. It has been held further that the decree holder is not required to file another suit as he has already obtained a decree in his favour by spending much time and expenses and law lies in favour of the interpretation which would prevent multiplicity of the proceedings rather than the one which will generate it. 20. In Kailash Chand Milttal versus Tirathh Parkash Mittal and others, (2011) 161 PunLR 399 High Court of Punjab and Haryana has reiterated that in the event of taking possession in violation of the decree of permanent prohibitory injunction, in case the decree holder is called upon to file a fresh suit, then it would amount to giving a licence to the judgment debtor to violate the judgment and decree and the same would be against the public policy and would be harsh to the decree holder. 21. In view of discussion held herein above as also the case law referred to supra, as this Court does not finds any infirmity with the orders passed by the learned Executing Court whereby it has ordered the judgment debtors to deliver the possession of the suit land to the decree holders and thereafter has ordered attachment of the property of the judgment debtors in view of the non-compliance of the said direction, this petition, being devoid of any merit, is accordingly dismissed, so also pending miscellaneous application(s), if any.