Mujiboddin Hakimoddin vs Shamshuddin Nijamoddin
2025 Latest Caselaw 962 Bom

Bombay High Court

Mujiboddin Hakimoddin vs Shamshuddin Nijamoddin on 29 July, 2025

2025:BHC-AUG:19881
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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD
                             WRIT PETITION NO.13859 OF 2023

               1.     Mujiboddin Hakimoddin,
                      Age: 40 years, Occ.- Agriculture,
                      R/o. Jafrabad, Tal. Jafrabad, Dist. Jalna.

               2.     Ikramoddin Hakimoddin,
                      Age: 51 years, Occ.- Agriculture,
                      R/o. Jafrabad, Tal. Jafrabad, Dist. Jalna.        ..Petitioners

                      Versus

               Shamshuddin Nijamoddin,
               Age: 70 years, Occ- Agriculture,
               R/o. Jafrabad, Tal. Jafrabad, Dist. Jalna.         ..Respondent
                                                 ...
               Mr. Shaikh Mazhar A. Jahagirdar, Advocate for Petitioners.
               Mr. R. O. Awasarmol, Advocate for Respondent.
                                                ...

                                           CORAM : S. G. CHAPALGAONKAR, J.

               Reserved On : 23rd JULY, 2025.
               Pronounce On : 29th JULY, 2025.

               JUDGMENT:

-

1. Rule. Rule made returnable forthwith. With consent of the

parties, matter is taken up for final hearing at admission stage.

2. The petitioners/judgment-debtors impugn order dated

12.09.2023 passed by learned District Judge, Jalna in Regular Civil

Appeal No.78/2023, thereby upholding order dated 13.07.2023

passed by learned Civil Judge Junior Division, Jafrabad in Regular

Darkhast No.8/2019, by which petitioners/judgment-debtors are

directed to deliver vacant possession of suit house to

respondent/decree holder.

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3. The respondent had instituted Regular Civil Suit

No.143/2008 seeking decree of perpetual injunction against

petitioners in respect of house property i.e. Grampanchayat House

No.841 (old G. P. House No.993) situated at Jafrabad. The Trial

Court decreed suit vide judgment and order dated 29.10.2009 and

restrained petitioners from obstructing peaceful possession of

respondent over suit house. The decree passed by Trial Court has

attained finality.

4. The respondent/decree holder filed Regular Darkhast

No.8/2019 before Civil Judge Junior Division at Jafrabad seeking

execution of decree dated 29.10.2009 contending that petitioners in

breach of decree of perpetual injunction put articles in suit house

and petitioner no.1 has actually started residing in it. The

respondent, therefore, sought police aid for restoration of

possession, so also prayed for putting petitioners in civil prison and

claimed compensatory cost of Rs.2,00,000/-. The Executing Court

issued notices to petitioners. They filed their say. According to

them, once respondent/decree holder admitted possession of

petitioners, it is expected to file separate suit for recovery of

possession. The learned Executing Court then framed points for

consideration and recorded evidence of parties. The

respondent/decree holder recorded his evidence on oath and stated

that since he was out of station, in the evening of 25.12.2018 (3) wp-13859-2023.odt

petitioners broke lock of suit house and forcefully entered into suit

house alongwith household articles. On 01.02.2019, when he came

back, petitioners abused him and gave threat to kill him. The

petitioner no.1 recorded his evidence. He denied ownership of

respondent over Grampanchayat House No.841 i.e. suit property.

The learned Executing Court after considering aforesaid evidence

directed petitioners to hand over possession of suit house in favour

respondent. In Regular Civil Appeal No.78/2023 filed by

petitioners before District Court, order as passed by Executing

Court is confirmed.

5. Mr. Jahagirdar, learned Advocate appearing for petitioners

vehemently submits that decree of perpetual injunction was passed

in favour of respondent. However, under garb of execution of such

decree he is trying to obtain possession of suit property from

petitioners. According to Mr. Jahagirdar, there was no evidence

before Executing Court to establish that respondent was in

possession of suit property and he has been forcefully dispossessed

by petitioners. He would submit that decree as passed by Trial

Court was invalid, in absence of proof of partition. According to

Mr. Jahagirdar, property in which respondent was residing has

been acquired and petitioner no.1 was residing in his property,

which is shown as suit property. According to Mr. Jahagirdar,

decree of perpetual injunction could have been executed in terms of (4) wp-13859-2023.odt

Order XXI Rule 32 of Code of Civil Procedure, which prescribes for

mode of detention of judgment-debtors or auction sale of his

property. However, there cannot be order to deliver vacant

possession.

6. Per contra, Mr. Awasarmol, learned Advocate appearing for

respondent supports impugned order.

7. Having considered submissions advanced and on perusal of

material tendered before this Court, it can be observed that

respondent had instituted suit for perpetual injunction against

petitioners alleging obstruction to his possession over suit house

bearing Grampanchayat No.841 (old G. P. House No.993)

admeasuring 30 ft. x 25 ft. situated at village Jafrabad. The

description of suit property is given with its four boundaries. The

petitioners, who were defendants in that suit caused their

appearance and took stand that at the time of partition of

properties respondent had relinquished his share in the house

property situated at Jafrabad as he was settled in Mumbai and,

therefore, their father allotted the same to other brothers excluding

petitioners. The Trial Court after considering pleadings and

evidence recorded by parties, decreed suit holding plaintiff's

possession over suit property. Eventually, petitioners were

perpetually restrained from causing any sort of obstruction and

interference in possession of plaintiff over suit house. The (5) wp-13859-2023.odt

aforesaid decree has attained finality. In this background,

respondent filed execution proceeding in Regular Darkhast

No.8/2019 contending that taking advantage of fact that he was out

of station, petitioners forcefully entered in suit house and took

possession in breach of injunction order.

8. The Executing Court recorded evidence of parties. The

plaintiff and his witnesses narrated that defendants have forcefully

took possession of house property. The fact remains that decree of

perpetual injunction is passed against petitioners and during

subsistence of such decree, petitioners have acquired possession.

Although they are trying to contend that they were continuously in

possession even prior to institution of suit, such contentions cannot

be accepted, since rights of parties were crystallized while passing

decree. The petitioners cannot claim their possession over suit

property once final decree of prohibitory injunction is passed

against them upholding possession of respondent.

9. So far as contention of Mr. Jahagirdar that decree of

prohibitory injunction has to be executed in a manner provided

under Order XXI Rule 32 of Code of Civil Procedure, there cannot

be two views. However, it requires true and correct understanding

of interpretation of said provision. Explanation to sub-rule (5) of

Rule 32 of Order XXI of Code of Civil Procedure came into force

w.e.f. 01.07.2002. Careful reading of aforesaid Explanation would (6) wp-13859-2023.odt

show that decree of prohibitory injunction can also be enforced by

directing recovery of possession where judgment-debtor had

disobeyed decree.

10. In case of Sabitri Khuntia and Others v. Ram Avatar

Modi1, it has been held that decree for prohibitory injunction can

be executed taking recourse to sub-rule (5) of Rule 32 by removing

construction raised by judgment-debtor in violation of decree. In

yet another judgment delivered by Panjab and Haryana High

Court in case of Kapoor Singh v. Om Prakash2, it has been

observed that in the event of violation of a decree for prohibitory

injunction by way of dispossession of the decree holder by the

judgment-debtors, the executing court has jurisdiction to restore

possession in favour of the decree holder, who cannot be compelled

to file another suit. In that case, it is clarified that sub-rule (5) of

Rule 32 cannot be given narrow interpretation to apply the same

only to decree of mandatory injunction and not prohibitory

injunction.

11. Single Judge of Orissa High Court in case of Kuni Mohanty

Vs. Upendra Barik and Others3 while interpreting provision of

sub-rule (5) of Rule 32 of Order XXI observed thus :

1 (2006) (II) CLR-368.

2   AIR 2009 PNH 188
3   2016 AIR CC 2610 (ORI)
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" The answer in my considered view has to be in the affirmative that when a decree for injunction is sought to be executed resorting to the provision of sub-rule (5 of Rule 32 of Order 21 and in the process, a person is threatened with dispossession or is dispossessed, he has a right to complain in accordance with the provision of the rules contained from Rule 97 onwards cannot be shown the door of exit merely on such technical ground that it being not the execution of a decree for possession but a decree for injunction sought to be executed, the claim is not entertainable at all. Such a narrow construction in my considered view will run contrary to the intention of the Legislature in enacting the provision of law, i.e., Order 21, Rule 99 of the Code as also law laid down by the Apex Court in all those cases (supra). Moreover, when the decree for injunction is sought to be enforced by resorting the provision of Order 21, Rule 32 (5) of the Code, the same for the purpose has to be taken to be a decree for possession so far as the third party/claimant is concerned."

12. In case of Meera Chauhan Vs. Harsh Bishnoi,4 the

Hon'ble Supreme Court of India observed in paragraph nos. 17,

18 and 19 which reads thus :-

"17. In Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, while dealing with the power of the Court to pass orders for the ends of justice or to prevent the abuse of the process of the Court, the Hon'ble Supreme Court held that the courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order XXXIX of the Code of Civil Procedure Code.

18. At the same time, it is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order.

4   (2007) 12 SCC 201
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19. It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the Court can order restoration of possession to the party wronged."

13. It can be observed that Civil Court, who has passed decree is

also guardian of such decree and in case of breach of directions

under decree, Civil Court is not powerless to exercise inherent

powers and restore decree holder in the position as he was at the

time of granting decree of perpetual injunction. If judgment-debtor

breaches such decree and does some acts to frustrate decree, Court

can use such powers and take all those necessary steps to guard

decree.

14. In that view of the matter, this Court do not find any merit in

Writ Petition. Hence, Writ Petition stands rejected.

15. Rule is discharged.

(S. G. CHAPALGAONKAR) JUDGE Devendra/July-2025