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2022 DIGILAW 2001 (PNJ)

Director Indian Institute of Technology Iit Ropar v. Shamsher Singh

2022-11-18

HARKESH MANUJA

body2022
JUDGMENT Harkesh Manuja, J. (Oral) - By way of present revision petition challenge has been made to an order dated 18.01.2020 (Annxure P-3) passed by the Executing Court, whereby, warrant of attachment has been issued regarding few of the properties owned by the petitioner-institute. 2. The facts leading to the present case are that a suit for permanent injunction came to be filed at the instance of respondents No.l to 3/plaintiffs which was decreed by the Court of Additional Civil Judge (Sr. Divn.), Rupnagar, vide judgment and decree dated 15.09.2016. The operative para of the said judgment is reproduced as under: '20. In view of my findings on aforesaid issues, the suit of the plaintiffs succeed and the same stands decreed with costs. Defendants are restrained from interfering into the possession of the plaintiffs over the suit property, as mentioned in the headnote of the plaint, otherwise than due course of law. Shamsher Singh & Others Vs. Director and Anr, Page No.10. Decree Sheet be prepared and file be consigned to the record room. ' 3. After a period of almost 3 years, respondents No.l to 3/plaintiffs filed an execution application dated 04.10.2019 stating therein that the Judgment Debtors (hereinafter referred to as 'JDs') /defendants were giving threats to the decree holder to interfere and dispossess them. Relevant paras No.4 and 5 from the execution application dated 04.10.2019 are reproduced as under: '4. That the said judgment and decree is very much within the knowledge of the defendanis/JDs from the very beginning and in spite of that the JDs are not obeying the decree and have miserably failed to obey it. 5.That for the enforcement of the said decree, the decree holder have failed the present application against JDs because all the JDs are now giving threats to the decree holders to interfere and dispossess the decree holders illegally and forcibly and further by making illegal construction into the property in question for which the JDs have no right to do so. ' 4. In the aforesaid execution application, respondents No.l to 3 moved an application dated 18.01.2020, giving a list of properties owned by the JDs. Vide order dated 18.01.2020, the Executing Court ordered attachment of those properties. It is the aforesaid order dated 18.01.2020 which has been impugned by way of present revision petition. 5. ' 4. In the aforesaid execution application, respondents No.l to 3 moved an application dated 18.01.2020, giving a list of properties owned by the JDs. Vide order dated 18.01.2020, the Executing Court ordered attachment of those properties. It is the aforesaid order dated 18.01.2020 which has been impugned by way of present revision petition. 5. Learned counsel appearing on behalf of petitioners contends that the Executing Court before passing the impugned order has failed to take into account the provisions of Order 21 Rule 32 CPC. He submits that in view of the aforesaid provision before passing the impugned order, Executing Court has failed to record any satisfaction to the effect that there was any willful disobedience of the judgment and decree passed by the trial Court, on part of the petitioner. 6. On the other hand, learned counsel for respondents No.l to 3/JDs submits that the petitioners approached the Executing Court so that they may be granted opportunity to comply with the judgment and decree passed by the trial Court and therefore, there was no question of recording of any such satisfaction by the Executing Court as claimed by the petitioners under Order 21 Rule 32 CPC. He also submits that perhaps the petitioners did not attach all the zimni orders passed by the Executing Court so as to show that whether any notice was ever served upon them before passing of the impugned order. In addition, learned counsel for the respondents also submits that once the decree for permanent injunction was passed in favour of respondents No.l to 3/JDs, the only remedy left with them was to invoke Order 21 Rule 32 CPC. 7. I have heard learned counsel for the parties and gone through the paper book. I find merits in the contention raised on behalf of petitioners. 8. After passing of judgment and decree dated 15.09.2016 when the execution petition was filed on 04.10.2011, before passing any order of the attachment, the learned trial Court was required to grant an opportunity to the petitioners to show cause as regards any disobedience of the decree in question. Still further, in the absence of any finding having been recorded by the Executing Court regarding any willful obedience of the decree passed by the trial Court, no order of attachment could have been passed under Rule 32 Order 21 CPC. 9. Still further, in the absence of any finding having been recorded by the Executing Court regarding any willful obedience of the decree passed by the trial Court, no order of attachment could have been passed under Rule 32 Order 21 CPC. 9. Further more, learned counsel for the petitioners submits that besides the orders appended along with the present revision petition, there was no other order passed by the Executing Court in the proceedings pending before it. In addition it may also be relevant to point out here that, as in the present case, execution application was filed after beyond a period of 2 years of the passing of the decree in favour of respondents No.l to 3, the Executing Court was required to issue notice upon the petitioners/JDs before proceeding further by following Rule 22 of Order 21 of CPC, which was never followed. 10. In view of the discussion made hereinabove, the present revision petition is hereby allowed, the impugned order dated 18.01.2020 passed by the Executing Court is hereby set aside with a further direction that the learned Executing Court shall proceed further with the execution application as per the procedure laid down under Rule 32 Order 21 CPC. Accordingly, the parties are directed to appear before Executing Court on the date fixed i.e.19.11.2022. 11. Pending applications, if any, also stand disposed of.