Order : (Rakesh Mohan Pandey, J.) 1. The petitioner has filed this petition seeking the following relief(s):- “ 10.1. This this Hon'ble Court may kindly be pleased to set-aside the Order dated 31.07.2024 (Annexure P/1) passed by the Execution Court i.e. in the Execution Case No. 127-A/1993 in the interest of justice. 10.2. That, this Hon'ble Court may kindly be directed to the Execution Court to execute the decree passed in Civil Suit No. 127-A/1993 strictly as per the mandate of law. 10.3. This Hon'ble Court may kindly be pleased to call for the entire records of the court below, for kind perusal of this Hon'ble Court. 10.4. Any other relief which this Hon'ble Court deem fit and proper may also kindly be granted to the petitioners in the interest of justice.” 2. The petitioner/judgment debtor has challenged the Order dated 31.07.2024 (Annexure P/1) passed by the learned Execution Court i.e. IInd Civil Judge Class-I, Raipur Chhattisgarh in Execution Case No. 127– A/1993, whereby the application moved by the present petitioner under Order 26 Rule 10(2) read with Section 151 of C.P.C. has been rejected. 3. Brief facts of the present case are as under:- A. The mother of respondents No.1 & 2/decree holders, namely Sushila Bai filed a civil suit for declaration of title and permanent injunction against the petitioner and respondent No.3/State with regard to the suit property bearing survey number 608/2, ad-measuring 0.83 acre situated at village Tikrapara, Patwari Halka No. 70, Tehsil and District Raipur. B. The suit was registered as a civil suit No.127-A/1993. The learned trial Court passed the judgment in the said civil suit on 11.01.1996 and decreed the suit. A decree of declaration of title and permanent injunction was passed in favour of the plaintiff. The learned trial Court found the plaintiff in possession of the suit property and also found that there was encroachment. C. Later, on 22.08.2007, the legal hairs of Sushila Bhai, namely Sharad Daga and Pradeep Daga moved an application for execution, inter alia, on the ground that the petitioner/judgment debtor has encroached over some part of the suit property and started raising construction. D. During the course of execution proceedings, the learned Executing Court called a demarcation report from the Nayab Tahsildar, Bilaspur with regard to physical possession of the suit property. D. During the course of execution proceedings, the learned Executing Court called a demarcation report from the Nayab Tahsildar, Bilaspur with regard to physical possession of the suit property. The Nayab Tahsildar submitted its report on 11.01.2024 wherein it is stated that the petitioner/judgment debtor has encroached over the suit property. E. The petitioner filed an application/objection under Order 26 Rule 10 (2) read with Section 151 of the CPC for setting aside the memo/demarcation report dated 11.01.2024 and prayed to call the concerned Tehsildar for his examination. F. Respondent No.1 & 2/decree holders filed their reply. The decree holders also moved an application for demarcation but the same was dismissed. 4. Mr. Shobhit Koshta, learned counsel appearing for the petitioner would submit that the learned Executing Court has issued a warrant of possession against the petitioner/judgment debtor, whereas there was no decree of possession in favour of the plaintiff. He would contend that the learned Executing Court ought to have allowed the application moved under Order 26 Rule 10 (2) of the CPC. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Rameswar Dass Gupta v. State of Uttar Pradesh and another , (1996) 5 SCC 728 Reliance has also been placed on the judgment passed by the Hon’ble Supreme Court in the matter of State of Madhya Pradesh v. Mangilal Sharma , (1998) 2 SCC 510 , wherein it is held that the declaratory decree merely declares the right of the decree-holder vis-a- vis the judgment debtor and does not in terms direct the judgment debtor to do or refrain from doing any particular act or thing. 5. On the other hand, Mr Manoj Paranjpe, learned counsel appearing for respondent No.1/decree holder would oppose the submissions made by Mr. Shobhit Koshta and submit that a decree was passed in favour of mother of respondents No.1 & 2 namely, Sushila Bai on 11.01.1996; and the decree of declaration of title and permanent injunction was granted in her favour. He would further submit that the plaintiff was found in possession of the suit property. He would further contend that on 22.08.2007, the decree holders moved an application for execution on the ground that 3 days prior to 30.07.2007, the judgment debtor took possession of the suit property and made an attempt to raise construction. He would further submit that the plaintiff was found in possession of the suit property. He would further contend that on 22.08.2007, the decree holders moved an application for execution on the ground that 3 days prior to 30.07.2007, the judgment debtor took possession of the suit property and made an attempt to raise construction. It is argued that the decree for injunction can be executed according to provisions of Order 21 Rule 32 of the CPC. He would refer to Order 21 Rule 32 (5) of the CPC and submit that in the interest of justice, the decree holders should not be driven to a separate suit for getting relief in the nature of enforcement of a decree which would ultimately save his time, labour and money. The Law Commission has also inserted an explanation below Rule 32 of Order 21 of the CPC. He would also submit that the Executing Court has the jurisdiction to pass an order to see that the decree is enforced, implemented and obeyed by the judgment debtor. He would argue that if the judgment debtor had obtained possession of the decree holder's property by violating the decree, such judgment debtor needs to be expelled by the learned Executing Court by exercising power conferred under Order 21 Rule 32 of the CPC or exercising inherent power under Section 151 of the CPC. 6. With regard to the demarcation report, he would submit that the petitioner was present at the time of the demarcation proceeding and the same is evident from Panchanama. He would argue that as the judgment debtor was present at the time of demarcation and no objection was raised, he cannot be permitted to examine the Commissioner personally; thus, he would pray that the instant petition deserves to be dismissed. 7. I have heard learned counsel for the parties and perused the documents. 8. In the matter of Rameshwar Dass Gupta (supra), it is held that the Executing Court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 of the CPC. The Hon’ble Supreme Court in para 4 held as under:- “4. 8. In the matter of Rameshwar Dass Gupta (supra), it is held that the Executing Court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 of the CPC. The Hon’ble Supreme Court in para 4 held as under:- “4. It is well settled legal position that an executing Court cannot travel beyond the order or decree under execution, It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21, CPC. In view of the fact that it is a money claim, what was to be computed is the arrears of the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree-holder in a sum of Rs.1,97,000/- and odd, the question that arises is whether the executing Court could step out and grant a decree for interest which was not part of the decree for execution on the ground of delay in payment or for unreasonable stand taken in execution ? In our view, the executing Court has exceeded its jurisdiction and the order is one without jurisdiction and is thereby a void order. It true that the High Court normally exercises its revisional jurisdiction under Section 115, CPC but once it is held that the executing Court has exceeded its jurisdiction, it is but the duty of the High Court to correct the same. Therefore, we do not find any illegally in the order passed by the High Court in interfering with and setting aside the order directing payment of interest.” 9. Admittedly, a Civil Suit was filed by the mother of the decree holder, seeking relief of declaration of title and permanent injunction and the same was decreed vide judgment and decree dated 11.01.1996. A perusal of the judgment would show that the plaintiff was found in possession of the suit property and at that time, there was no encroachment. On 22.08.2007, the judgment debtor took possession of the suit property and made an attempt to take possession and raise construction. 10. Notice was issued to the petitioner/judgment-debtor and an application was moved for demarcation. The suit property was demarcated and in the demarcation report, the Naib Tehsildar found encroachment over the suit property. On 22.08.2007, the judgment debtor took possession of the suit property and made an attempt to take possession and raise construction. 10. Notice was issued to the petitioner/judgment-debtor and an application was moved for demarcation. The suit property was demarcated and in the demarcation report, the Naib Tehsildar found encroachment over the suit property. The panchanama would show that at the time of demarcation, the judgment debtor was present and deliberately he did not sign on the demarcation report, nor did he raise any objection to it. Order 26 Rule 10 (2) CPC says that the report of the Commissioner and the evidence taken by him shall be the evidence in the suit and shall form part of the record. The Court may examine the Commissioner or with the permission of the Court, he may be examined by the parties. Further, from a perusal of the Panchanama, it is apparent in the presence of both parties, the demarcation was conducted and a report was prepared. 11. In the present case, the petitioner moved an application to examine the Commissioner. The learned executing Court recorded a finding that the demarcation was conducted strictly in accordance with the law. The photographs were also taken and encroachment over the suit property was found, therefore, in the opinion of this Court, the learned executing Court has not committed any error of law while rejecting the application. 12. In the matter of Toran Singh v. Imrat Singh, 2012 (3) MPLJ , the High Court of Madhya Pradesh, while dealing with the provisions of Order 21 Rule 32 of the CPC particularly, the explanation in para 12 &13 held as under:- “12 . A bare perusal of the recommendation shows that the intention was to adopt a wider view to cover prohibitory as well as mandatory injunctions. Interestingly, this recommendation was made by Law Commission even contrary to the views taken by various High Courts before such recommendation. It was felt necessary to include that explanation in the interest of justice so that decree holder should not be driven to a separate suit for getting relief in the nature of enforcement of a decree which will ultimately save his time, labour and money. It was felt necessary to include that explanation in the interest of justice so that decree holder should not be driven to a separate suit for getting relief in the nature of enforcement of a decree which will ultimately save his time, labour and money. Once the said recommendation is translated in reality by including it in Civil Procedure Code by way of explanation, the basic question is whether petitioner can succeed on the strength of existing provision, i.e., Order 21 Rule 32(1)(5), read with explanation. In the opinion of this Court, the executing Court has power and jurisdiction to pass any order to see that the decree is enforced and implemented and it is obeyed by the judgment-debtor. Even a decree of a injunction needs to be enforced as per the said explanation, if the judgment-debtor had gained possession on the decree holder's property by violating decree, said judgment-debtor needs to be expelled by the executing Court by exercising powers under Order 21, Rule 32 or by exercising inherent powers under section 151 of Civil Procedure Code. 13. In my considered opinion, the Court below has given specific finding regarding allotment of land in favour of the petitioner which had not been cancelled, coupled with the finding that the petitioner is in possession. On the strength of these findings, the permanent injunction was granted with further direction to not to disturb the petitioner from the possession. If contrary to aforesaid judgment and decree, judgment-debtor had disturbed and gained possession, it amounts to defeating the decree passed by the Court below. Thus, it has to be held that the judgment-debtor forcibly dispossessed the plaintiff in violation of order of injunction and took possession of the property. The executing Court has ample jurisdiction to prevent the decree being flouted and to do justice to the plaintiff by putting back the plaintiff in possession of the property. This Court finds support from the following judgments :—(i) Ram Charan Sikarwar vs. Smt. Jogamaya Casu, AIR 1978 Cal. 93. (ii) Hari Nandan Agrawal and another vs. S. N. Pandita, AIR 1975 All 48 . (iti) Magna vs. Rustam, AIR 1963 Raj. 3 . (iv) Surjit Pal vs. Prabir Kumar Sun, AIR 1986 Cal 220 . (v) Delhi Development Authority vs. Kipper Construction Co.(P) Ltd., (1996) 4 SCC 622 = AIR 1996 SC 2005 . (vi) Ajayakumar vs. Damayanthi, (2004) 2 Ker LT 48. (iti) Magna vs. Rustam, AIR 1963 Raj. 3 . (iv) Surjit Pal vs. Prabir Kumar Sun, AIR 1986 Cal 220 . (v) Delhi Development Authority vs. Kipper Construction Co.(P) Ltd., (1996) 4 SCC 622 = AIR 1996 SC 2005 . (vi) Ajayakumar vs. Damayanthi, (2004) 2 Ker LT 48. (vii) Century Flour Mills Ltd. vs. S. Suppiah, AIR 1975 Mad. 270 (FB). (viti) Parukutty Amma vs. Thankamma Amma, (1988) 1 Ker LT 883. (ix) State of Orissa vs. Sudhansu Sekhar Misra, AIR 1968 SC 647 . (x) Thukalan Poulo Avira vs. Mar Basselios Gheevarghese, AIR 1954 Trav Co. 117. (xi) Krishna Joseph Desouza, 1985 Ker LT 1010 = AIR 1986 Ker 63 . (xii) Mohammad vs. Mohammed Haji, 1986 Ker LT 134. (xiti) Manohar Lal Chopra vs. Raj Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 . (xiv) Hamsa vs. George, (1995) 2 Ker LT 326 (1995) ATHC 6153. (xv) Mohd. Idris vs. Rustam Jehangir Bahuji, (1984) 4 SCC 216 ( AIR 1984 SC 1826 ). (xvi) Thazhapattathillath Krishnan Namboodiri and others vs. Thazhapattathillath Damodaran Namboodiri (Died) by LR. and etc., AIR 2005 Ker 328 .” 13. In the matter of Kailash and others v. Rajrani, 2024 SCC Online MP 3555 , the High Court of Madhya Pradesh in para-7 & 8 while dealing with the provisions of 21 Rule 32 of the CPC held as under:- “(7). Thus, when a decree for permanent prohibitory injunction is violated and judgment-debtors gain possession of the decree holders' property by violating the decree, the judgment-debtors may be expelled by the executing Court by exercising powers under Order 21 Rule 32 of the CPC. It would not be necessary for the decree holder to take any proceedings for seeking recovery of possession of the property or to institute a fresh suit. The same can very well be done in the proceedings instituted by the decree holders by the executing Court itself. (8) In the application which had been filed by the decree- holders before the executing Court specific prayer was made for directing the judgment-debtor to remove their illegal possession from over the suit land. This was upon allegation that the decree for permanent injunction has been violated by them and they have forcibly taken possession of the suit land. (8) In the application which had been filed by the decree- holders before the executing Court specific prayer was made for directing the judgment-debtor to remove their illegal possession from over the suit land. This was upon allegation that the decree for permanent injunction has been violated by them and they have forcibly taken possession of the suit land. Such a relief could very well be granted to the decree holder in exercise of power under Order 21 Rule 32 of the CPC and it would not be necessary for the decree holder to claim only those reliefs which are specifically mentioned therein. (9) Though in the application which had been filed by the decree holders the format was of Order 21 Rule 11 of the CPC but it is well settled that mere form is immaterial and it is the real nature of proceedings and the prayer made therein which ought to be taken into consideration. The decree holder has alleged the violation of decree for permanent injunction by the judgment- debtor and has prayed for possession of the suit property. The said application is in fact an application under Order 21 Rule 32 of the CPC claiming the reliefs which as per the judgment of Toran Singh (supra) can be claimed in such a proceeding. The executing Court has hence erred in dismissing the application preferred by the decree-holder as not maintainable. (10) It has been observed in passing the order by the executing Court that the decree holder has not been able to execute the decree and he is free to take another legal recourse/legal action but perusal of the record shows that on 23.07.2022 the executing court has arrived at a conclusion that the judgment debtor got illegal possession of the suit property after violating the judgment and decree passed by the trial court. (11) As a result of the aforesaid discussion, the impugned order passed by the executing Court cannot be sustained and is hereby set-aside and the matter is remanded back to it to treat the application preferred by the decree holder under Order 21 Rule 11 of the CPC to be under Order 21 Rule 32 of the CPC and to decide the same on merits in accordance with law and in view of the observations as made here-in-above. It is however, made clear that this Court has not expressed any opinion on merits of the contentions of the respective parties.” 14. In the present case, the petitioner took possession of the suit property in the month of July, 2007, and an application was moved on 22.08.2007. The execution application was moved within 12 years from the date of judgment and decree; though there was no decree with regard to the possession in favour of the plaintiff, but she was found in the possession of the suit property on the date of the judgment and decree. The explanation added below Order 21 Rule 32 of the CPC reads as under:- “ Order 21 deals with Execution of Decrees and Orders Payment under Decree. Rule 1….. * * * Rule 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 wilfully failed to obey it, the decree may be enforced 1 [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. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for 2 [six months,] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decreeholder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) 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 2 [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. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. “ [ Explanation .—For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.] Illustration A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B. A, in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution-proceedings.” 15. The main defence of the judgment debtor/petitioner is that the suit was filed only for declaration and permanent injunction and it was not for possession, and therefore, in the execution proceedings, the learned trial Court can not travel beyond what had been prayed and granted. 16. The main defence of the judgment debtor/petitioner is that the suit was filed only for declaration and permanent injunction and it was not for possession, and therefore, in the execution proceedings, the learned trial Court can not travel beyond what had been prayed and granted. 16. In the entire petition, the petitioner has made a statement that he has not encroached on the suit property, he is defending the execution proceedings on technical grounds; when a decree of declaration of title and permanent injunction has already been passed in favour of the plaintiff, to seek possession of the property, the decree holders cannot be driven to a separate suit, particularly when the period of limitation to file the execution case has not expired. The executing Court has the power and jurisdiction to enforce the decree passed by it and while exercising power under Order 21 Rule 32 (1) & (5) of the CPC and Section 151 of the CPC, it can restore possession, if the judgment debtor had gained possession on the decree holder’s property by violating the decree. 17. Taking into consideration the above-discussed facts and law, in the opinion of this Court, no case is made out for interference. 18.Accordingly, this petition fails and is hereby dismissed. No order as to cost.