Mangalsingh Mohansingh Rajput vs Anil Rambhau Chopde And Another
2016 Latest Caselaw 6892 Bom

                                                       1                                  WP6121.14(J)         
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR.




                                                                                                    
                                  WRIT PETITION NO. 6121/2014




                                                                            
    Mangalsingh Mohansingh Rajput,                                              PETITIONER
    Aged 33 years, Occ. Agriculturist,
    R/o. At and Post. Bhadgani, Tah. Malkapur,




                                                                           
    District Buldhana.

                   --Versus--

    1.  Anil Rambhau Chopde,                                       ...           RESPONDENTS




                                                            
         Aged 42 years, Occ. Agriculturist.
    2.  Kavita w/o Anil Chopde,
                                        
         Aged 37 years, Occ. Agriculturist,
         Both R/o. Bhadgani, Tq. Malkapur,
                                       
         District Buldhana. 
    ------------------------------------------------------------------------------------------------------
    Shri A.J.Thakkar, Advocate, for the petitioner.
    Shri S.R.Deshpande, Advocate for respondents
             


                   CORAM : R.K.Deshpande, J.

DATED : 02.12.2016

ORAL JUDGMENT

Rule, made returnable forthwith. Heard finally with the consent of

the learned counsels appearing for the petitioner and respondents.

2. The challenge in this petition is to the order dated 16.09.2014

passed below Exh.55 by the Executing Court in Regular Darkhast No.9 of

2 WP6121.14(J) 2012. The application filed under Section 151 of Code of Civil Procedure by

the petitioner for providing police aid to perform sowing operations in the

decreetal land has been rejected. The Court has recorded a finding that

inspite of repeated orders the decree holder has not led evidence. According

to Shri Deshpande, the learned counsel appearing for respondents, the trial

Court was right in recording such finding and without the decree holder

leading such evidence, neither the order of attachment of property nor the

order of detention of the judgment debtor in civil prison can be passed. He

submits that every time the Executing Court is passing the order asking the

decree holder to lead evidence and now such observations made in the order

impugned cannot be questioned.

3. In Regular Civil Suit No. 49 of 2008 filed by the

petitioner/original plaintiff, the trial Court has passed order on 20.06.2011,

the operative part of which, being relevant, is reproduced below:

"1. Suit is decreed with costs.

2. Defendants are perpetually restrained from causing any obstruction to the peaceful possession and enjoyment of the plaintiff over the suit property bearing Gut No.509 situated at Village Bhadgani, Tal-Malkapur, Dist-Buldhana by themselves or

3 WP6121.14(J) through their representatives, servants, friends, relatives, agents,

etc.

3. Decree be drawn up accordingly.

4. The trial Court framed a specific issue as to whether the plaintiff

has proved that he is in possession of the suit property since 1984. The said

issue has been answered in the affirmative and it is only thereafter that the

decree of perpetual injunction has been passed.

5.

Order 21 Rule 32(1) of Code of Civil Procedure being relevant is reproduced below :

Order 21 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 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

dentention in the civil prison, or by the attachment of his property, or by both".

It is apparent from the aforesaid provision that where a party

4 WP6121.14(J) against whom the decree for an injunction has been passed, has had an

opportunity of obeying the decree and has wilfully failed to obey, the decree

may be enforced by the detention in civil prison or by attachment of property

or by both.

6. In the present case, the finding recorded by the trial Court in

Regular Civil Suit No.49 of 2008 that the plaintiff is in possession of the suit

property cannot be reopened. The trial Court therefore committed an error in

asking the plaintiff to lead evidence in the matter for seeking police protection

for performing sowing operations in the decreetal land.

7. On 15th November, 2016, this Court had passed an order as under :

"Shri Deshpande, the learned counsel appearing for the respondent judgment debtor submits that the Executing Court has directed the decree holder to adduce evidence to establish the

obstruction to the possession of the decree holder over the suit property. The trial Court has already recorded the finding that the decree holder has established title over the suit property and

his possession over it. In view of this, the question of decree holder establishing his possession over the suit property does not at all arise.

The trial Court has already passed an order under

5 WP6121.14(J) Order XXI Rule 32(1) of the Code of Civil Procedure for

attachment of the property belonging to the defendant for causing obstruction. The trial Court is further at liberty to proceed under

Order XXI Rule 32(1) to pass an order of detention of the judgment debtor in civil prison. Shri Deshpande, was put a specific question whether his client who is the original judgment

debtor is causing an obstruction in the possession of the decree holder over the suit property. He seeks time to take instructions.

In view of above, the petitioner is at liberty to file an application under Order XXI Rule 32(1) of the C.P.C. for

detention of the judgment debtor in civil prison. The executing Court shall pass an appropriate order on such application on or

before 30.11.2016. The parties to appear before the Executing Court on 21.11.2016.

Put up this matter on 30.11.2016"

The judgment debtor was asked to make a specific statement as to

whether he is obstructing possession of the decree holder. There is a response

to the effect that the judgment debtor is in possession. This is not possible to

accept as the finding on this aspect is conclusive. It is informed by the parties

that the trial court has passed the order of detention of the judgment debtor

in civil prison. It shall be open to the petitioner to challenge the said order in

accordance with law in appropriate forum which shall decide its validity,

without being influenced by the observations made by this Court in the order

6 WP6121.14(J) dated 15.11.2016, referred above.

8. In view of the fact that the issue as to whether the plaintiff was in

possession of suit property being concluded in favour of the decree holder,

the trial Court was required to provide police aid to the petitioner decree

holder.

9. In the result, this petition is allowed. The order dated 16.09.2014

passed by the Executing Court in Regular Darkhast No.9 of 2012 is hereby

quashed and set aside. The application Exh.55 is allowed in terms of the

prayer clause of the said application. No costs.

JUDGE

Andurkar