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Madhya Pradesh High Court · body

2024 DIGILAW 578 (MP)

Jagivandas Jaiswal v. Nohari Bai

2024-08-22

DWARKA DHISH BANSAL

body2024
ORDER 1. This civil revision has been preferred by the applicant/plaintiff/decree-holder challenging the order dtd.12.5.2015 passed by Second Civil Judge Class-II, Shahdol in MJC No.9/2013 whereby Executing Court has, while deciding the respondents/judgment debtors’ application under section 11 and 151 of CPC dtd. 5.1.2015 (IA No.7), dismissed the execution application filed under Order 21 rule 32 r/w section 151 of CPC holding it to be not maintainable due to previous execution of judgment and decree by delivery of possession vide order dtd.9.11.2001. 2. Facts in short are that a judgment and decree declaring the plaintiff to be bhumiswami of the land in question, restoration of possession as well as for permanent injunction (after restoration of possession), was passed on 31.3.1998 by Additional Civil Judge Class I, Shahdol in civil suit No.94-A/1997, which was affirmed vide judgment and decree dtd. 6.8.1999 in civil appeal filed by respondents’ ascendant-Shambhu s/o Pardesi Kumhar and upon filing execution application, the judgment and decree of possession was executed and the plaintiff was put in possession. As there was decree of permanent injunction also, therefore, an application under Order 21 rule 32 r/w section 151 of CPC was filed by the applicant with the contention that although in pursuance of judgment and decree of declaration of title and restoration of possession, the plaintiff was put in possession on 9.11.2001, but later on the judgment debtors again in the year 2005 dispossessed the plaintiff from the suit land, thereupon contempt proceedings were initiated, which were dismissed on 16.7.2009 and in the misc. appeal I Addl. District Judge dismissed the appeal as not maintainable on 18.5.2012 with the observation that the applicant has remedy by way of application under Order 21 rule 32 and section 47 of CPC and as such by moving the said application, prayer for restoration of possession was made. 3. Upon service of notice on the respondents reply to the application was filed. Thereafter, an application under section 11 and 151 of CPC was also filed by them with the submissions that, as the decree of possession has already been executed by putting the plaintiff in possession on 9.11.2001, hence again upon dispossession of plaintiff, the application filed under Order 21 rule 32 of CPC is not maintainable and deserves to be dismissed on the ground of res judicata. 4. 4. After hearing learned counsel for the parties, Executing Court in the light of decisions in the case of K. Ramalingam and Ors. v. K.N. Krishna Reddi and Anr. (1974)1 MLJ 142 ; Amulya Chandra Chowdhury v. Haridas Basak AIR 1958 Tripura 11; and Ghanashyam Das Mour Agarwalla v. Fatik Chandra Das AIR 1957 Assam 123, has held that as in execution of the decree, the plaintiff was put in possession and even as per averments of application, the plaintiff has been dispossessed again, therefore, second application for restoration of possession under the provisions of Order 21 rule 32 of CPC is not maintainable and as the plaintiff is not in possession, therefore, no order can be passed regarding execution of decree of permanent injunction and accordingly dismissed the application by the impugned order. 5. Learned counsel for the applicant/plaintiff submits that the decisions in the case of K. Ramalingam and Ors. (supra); Amulya Chandra Chowdhury (supra); and Ghanashyam Das Mour Agarwalla (supra) are not applicable in the instant case because in all these cases, decree of restoration of possession was there but no decree of permanent injunction after restoration of possession was passed, whereas in the present case, a suit for declaration of title, restoration of possession and permanent injunction (after restoration of possession), was decreed and in presence of decree of permanent injunction, it cannot be said that once the plaintiff was put in possession, then after his dispossession by the respondents, he cannot file fresh application under Order 21 rule 32 of CPC. With these submissions he prays for allowing the civil revision. 6. Heard learned counsel for the applicant and perused the record. 7. As has been mentioned in the impugned order and not disputed by the applicant, in pursuance of decree of possession the plaintiff/applicant was put in possession of the suit land, but in the present case at the time of passing of judgment and decree of restoration of possession, another decree of permanent injunction (after restoration of possession) was also passed. 8. From the impugned order it is apparent that Executing Court has not taken into consideration factual matrix of decisions in the case of K. Ramalingam and Ors. (supra); Amulya Chandra Chowdhury (supra); and Ghanashyam Das Mour Agarwalla (supra) and has passed the impugned order without taking into consideration the effect and consequences of decree of permanent injunction. 8. From the impugned order it is apparent that Executing Court has not taken into consideration factual matrix of decisions in the case of K. Ramalingam and Ors. (supra); Amulya Chandra Chowdhury (supra); and Ghanashyam Das Mour Agarwalla (supra) and has passed the impugned order without taking into consideration the effect and consequences of decree of permanent injunction. Bare reading of these three decisions makes it clear that in all the three decisions, there was no decree of permanent injunction but the decree sought to be executed was for restoration of possession, as such the Courts took into consideration the scope of Order 21 rule 35 of CPC and not of Order 21 rule 32 of CPC. It is well settled that decree of permanent injunction is executable as per provisions contained in Order 21 rule 32 of CPC and noncompliance of decree of permanent injunction is a continuing disobedience entailing penal consequences. 9. Hon’ble Supreme Court in the case of Jai Dayal And Others v. Krishan Lal Garg And Another AIR 1997 SC 3765 , considered the effect of decree of permanent injunction as well as scope of provisions of Order 21 rule 32 of CPC and held as under : “6. It is contended that the High Court has proceeded on the premise that the rights of parties are required to be adjudicated under section 22 of the Easements Act. The view of the High Court is clearly in error. It is seen that once the decree of perpetual injunction and mandatory injunction has become final, the judgment-debtor is required to obey the decree. In whatever form he obstructs, it is liable to removal for violation and the natural consequence is the execution proceedings under Order XXI, Rule 32, CPC which reads as under : "(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if the judgment-debtor has not obeyed the decree, if the decree-holder has applied to have the attached property sold, such property may be sold; out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance, if any, to the judgment-debtor on his application. Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease." 7. In this case, since the attachment was made for enforcement of the perpetual injunction and mandatory injunction, the decree is required to be complied with. In case he did not obey the injunction under Clause (1) of Order 32, the judgment-debtor is liable to detention in the civil prison and also to proceed against the property under attachment.” 10. Similarly a coordinate Bench of Rajasthan High Court has, in the case of Legal Representatives of Maga Ram And Another v. Kana Ram And Others AIR 1993 Rajasthan 208, held as under : “3. A perusal of the decree under execution shows that it was for mandatory as well as for prohibitory injunction. It stood satisfied so far it concerned with mandatory part of the injunction by the removal of the encroachment existing on the disputed land on the date on which it was passed. The decree in respect of prohibitory injunction was subsisting even after the disposal of first and second execution applications. The third execution application has been moved for the execution of the decree in respect of the prohibitory injunction. It is perfectly executable under O. XXI, R. 32, C.P.C. 4. There is also no substance in the second objection relating to limitation. Art. 136, Limitation Act, deals with the limitation for execution of decrees other than a decree granting mandatory injunction. The limitation is 12 years from the date the decree becomes enforceable. The decree for prohibitory injunction become enforceable when the judgement-debtors made fresh encroachment on the disputed land. The decree under execution itself was passed on September 20, 1983. As such the third execution application was well within limitation.” 11. Another coordinate Bench of Bombay High Court has, in the case of Shri Benedito (Betty) Dias Alias Benidict Dias And Others v. Shri Armando Benedita Fernandes (Through LR’s) And Others 2017(4) AIR Bom.R 381, held as under :- “12. The decision of the Kerala High Court, in the case of M.G. Simon (supra), cannot take the case of the petitioners any further and in fact, would assist the respondents. The decision of the Kerala High Court, in the case of M.G. Simon (supra), cannot take the case of the petitioners any further and in fact, would assist the respondents. In that case also, it has been held that an application for enforcement of the decree granting prohibitory injunction shall not be subject to any period of limitation and where there is a composite decree, granting mandatory and prohibitory injunction, one part is subjected to limitation period of three years, whereas the other is not subjected to any period of limitation. The petitioner can enforce the prohibitory injunction, whenever violation of that part takes place. 13. In the case of Jai Dayal (supra), the Hon'ble Supreme Court has held that once the decree of perpetual and mandatory injunction has become final, the judgment debtor is required to obey the decree and a party cannot and should not, by his action be permitted to drive the decree holder to file a second suit. It has been inter-alia held that non-compliance is a continuing disobedience in respect of which a separate/fresh suit is barred under section 47 of the CPC. Thus, in my considered view, the contention based on the execution being barred by limitation, cannot be accepted.” 12. A coordinate Bench of Punjab and Haryana High Court also in the case of Dilbagh Singh And Others v. Harpal Singh Alias Harpal Singh Chela And Others 2020 Supreme (P&H) 944, has held as under : “6. Although learned counsel for the petitioners has laid much stress on the fact that to seek execution of the decree, qua the restoration of the possession in his favour, the decree holder was supposed to plead specifically as to when and in what manner he has been dispossessed. This Court finds this argument to be noted only to be rejected. The provisions of sub rule (5) Rule 32 of Order 21 CPC do not prescribe any such condition. Rather, Order 21 rule 32 CPC prescribes that for execution of a decree if any act is required to be done by the judgment debtor, the Executing Court can order that such an act be done by the judgment debtor; as claimed. Sub rule (5) rule 32 of Order 21 CPC has been interpreted by the Supreme Court in various judgments viz. Sub rule (5) rule 32 of Order 21 CPC has been interpreted by the Supreme Court in various judgments viz. "Samee Khan v. Bindu Khan, 1998(4) RCR(Civil) 125 (SC)" to mean that in an execution proceedings of a decree for injunction, if it is found that the decree holder has been dispossessed after the date of decree, the restoration of possession can also be ordered by the Executing Court. Hence, it is no more resintegra that in execution of a decree for injunction, even restoration of possession can be ordered by the Executing Court. This view has also been taken by this court in 'Kapoor Singh v. Om Parkash, 2009(4) PLR 178' . Hence, no fault can be found, perse, with the action of the Executing Court in issuing warrants of possession in the execution proceedings.” 13. Aforesaid legal position makes it clear that there is no limitation for filing the application for execution of decree of permanent injunction and the application for execution of a decree of permanent injunction under Order 21 rule 32 of CPC can be filed many times, depending on the circumstances surrounding the enforcement of the decree. The decreeholder can file execution applications as long as there is a continuing violation or disobedience of the decree. Further, in the execution of a decree for injunction, even restoration of possession can be ordered by the Executing Court. 14. While passing the impugned order, Executing Court has failed to consider aforesaid aspect of the matter and just in the light of pervious order dtd.9.11.2001 has dismissed the application under Order 21 rule 32 r/w section 151 of CPC as not maintainable. 15. As such in my considered opinion the impugned order is not sustainable and is hereby set aside and by dismissing the judgment debtors’ application filed under section 11 & 151 of CPC, matter is remanded to Executing Court with a direction to restore the execution application to its number and to pass fresh orders on the application under Order 21 rule 32 r/w section 151 of CPC on merits in accordance with the aforesaid law. 16. With the aforesaid, this civil revision succeeds and is hereby allowed & disposed off. 17. Parties are directed to remain present before Executing Court on 23.9.2024. However, Executing Court is free to issue notice to the parties with a view to secure their presence. 18. Misc. 16. With the aforesaid, this civil revision succeeds and is hereby allowed & disposed off. 17. Parties are directed to remain present before Executing Court on 23.9.2024. However, Executing Court is free to issue notice to the parties with a view to secure their presence. 18. Misc. application(s), pending if any, shall stand closed.