Madhya Pradesh High Court
Sudheer Kumar vs Balram on 8 August, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRAD
ESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
CIVIL REVISION No. 501 of 2021
BETWEEN:-
1. SUDHEER KUMAR S/O PARASMAL JAIN,
AGED ABOUT 48 YEARS, OCCUPATION:
BUSINESS, R/O PIPLYA MANDI TEH.
MALHARGARH, DISTRICT MANDSAUR
(MADHYA PRADESH)
2. MANOJ KUMAR S/O PARASMAL JAIN,
AGED ABOUT 36 YEARS, OCCUPATION:
BUSINESS, R/O PIPLYA MANDI, TEHSIL
MALHARGARH, DISTRICT MANDSAUR
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI MAKBOOL AHMAD MANSOORI - ADVOCATE)
AND
1. BALRAM S/O JADSISHCHANDRA PORWAL,
AGED ABOUT 30 YEARS, OCCUPATION:
BUSINESS, R/O VILL-BUDHHA TEH.
MALHARGARH (MADHYA PRADESH)
2. NARENDRA KUMAR S/O
JAGDISHCHANDRA PORWAL, AGED
ABOUT 22 YEARS, OCCUPATION: BUSINESS
R/O VILLAGE BUDHA, TEHSIL
MALHARGAHR (MADHYA PRADESH)
3. NAVEEN KUMAR (SINCE DEAD) THR. LRS.
SANGITA W/O LATE NAVEEN KUMAR JAIN,
AGED ABOUT 40 YEARS, OCCUPATION:
HOUSEHOLD WORK PIPLYA MANDI,
TEHSIL MALHARGARH (MADHYA
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 08-Aug-23
2:51:49 PM
2
PRADESH)
4. NAVEEN KUMAR (SINCE DEAD) THR. LRS.
SHREYA D/O LATE NAVEEN KUMAR JAIN,
AGED ABOUT 19 YEARS, OCCUPATION:
STUDY PIPLYA MANDI, TEHSIL
MALHARGARH (MADHYA PRADESH)
5. NAVEEN KUMAR (SINCE DEAD) THR. LRS.
SHREYANS S/O LATE NAVEEN KUMAR
MINOR THROUGH GUARDIAN MOTHER
SANGITA W/O LATE NAVEEN KUMAR JAIN,
AGED ABOUT 40 YEARS, OCCUPATION:
HOUSEHOLD WORK PIPLYA MANDI,
TEHSIL MALHARGARH, DISTRICT-
MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VEER KUMAR JAIN- SENIOR ADVOCATE
WITH MS. VAISHALI JAIN- ADVOCATE )
Reserved on : 11.07.2023
Pronounced on : 08.08.2023
This revision having been heard and reserved for orders,
coming on for pronouncement this day, HON'BLE JUSTICE
PRANAY VERMA pronounced the following.
ORDER
This revision under Section 115 of the CPC has been
preferred by the petitioners/decree holders being aggrieved by the
order dated 15.11.2021 passed by the Additional Judge to the Court
of Civil Judge, Class-I, Narayangarh, District - Mandsaur whereby
the execution application preferred by them has been dismissed.
2. The decree - holders had instituted an action before the Civil
Judge, Class-II Narayangarh, District Mandsaur for permanent
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CHOURASIA
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injunction restraining the judgment debtors from interfering with their
possession over the suit land bearing survey No.50/Min-2 area 0.152
hectare, village Tilakhedi, Tehsil Malhargarh, District Mandsaur. By
judgment and decree dated 30.01.2017, the claim was decreed by the
trial Court and the judgment-debtors were restrained from interfering
with their possession over the suit land. The said decree was based
upon the fact that the decree holder was found to be in possession the
suit land. It is common ground that the said decree has attained finality
since the same has not been challenged before any higher Court.
3. On 23.07.2018, the decree holders filed an application under
Order 21 rule 11 of the CPC before the Executing Court submitting that
the judgment-debtors have violated the decree of injunction and have
started making illegal construction over the suit land. Prayer was made
for issuance of appropriate direction directing the judgment debtors to
remove the illegal construction and for punishing them for willful
disobedience of the decree. The judgment-debtors contested the
application by filing their reply.
5. The executing Court directed the revenue inspector, Circle
Malhargarh, District - Mandsaur to carry out spot inspection and to
submit report as regards actual position on the spot relating to the suit
land. As directed spot inspection was conducted in presence of parties
and the spot inspection report was submitted to the executing Court. The
parties thereafter, adduced documentary evidence in support of their
respective contentions. Affidavits were also filed by them in their
support.
6. By the impugned order the execution application preferred by
the petitioners has been dismissed by the executing Court by observing
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that since the decree in favour of decree holders is for permanent
injunction hence the remedy was for them was to prefer an application
under Order 21 Rule 32 of the CPC and claiming reliefs as provided
therein. The application made by them for directing removal of
constructions of the judgment-debtors and delivery of vacant possession
to them is not maintainable. Even accepting the stand of decree holders,
a new cause of action has arisen to them and they should institute a
fresh suit in respect of the same and in the present proceeding no
direction for delivery of possession can be issued. It was also observed
that the decree holders have not proved that the judgment-debtors have
taken possession of any land belonging to them and have made
construction thereupon.
7. Though submissions have been made by the learned counsel
for the parties in detail on the question as to whether the decree has
been violated by the judgment-debtors and as to whether the said fact is
proved from the material available on record, but it is noticed that the
application of the decree holders has been rejected by the executing
Court primarily on the ground that the same is not maintainable and by
observing that the proper remedy for them was to file an application
under Order 21 Rule 32 of the CPC and to claim the reliefs as provided
therein.
8. In case the judgment-debtors violate the injunction decree
and forcibly take possession, whether the remedy of the decree holders
would be to file application under Order 21 Rule 32 of the CPC has
been emphatically settled by this Court in the case of Toram Singh vs.
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Imrat Singh and other, 2012 (3) M.P.L.J, 385 in which it has been
held in paragraph No.12 to 16 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. Once the said recommendation is
translated in reality by including it in CPC 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
permanent prohibitory 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 Executive
Court by exercising powers under Order 21 Rule 32 or by
exercising inherent powers under Section 151 of CPC.
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
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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 or 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 193. (ii) Hari Nandan
Agrawal and another Vs. S.N. Pandita, AIR 1975
All 48. (iii) 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). (viii) 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
Rasselios Gheevarghese, AIR 1954 TravCo. 117.
(xi) Krishna Vs. Joseph Desouza, 1985 Ker LtT
1010 = AIR 1986 Ker 63. (xii) Mohammad Vs..
Mohammed Haji, 1986 Ker LT 134. (xiii)
Manohar Lal Chopra Vs. Raj Bahadur Rao Raja
Seth Hiralal, AIR 1962 SC 527. (xiv) Hamsa Vs.
George, (1995) 2 Ker LT 326 = (1995) AIHC
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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.
14. In AIR 1975 Madras 270 (FB), the Full Bench of
the High Court held that Order 39 of CPC should not be
considered as placing any limit on the scope of inherent power
under Section 151, which are wide and not subject to any
limitation. Whenever there is any violation of an order or
injunction against party, or something has been done in
disobedience, it will be the duty of the Court to put the clock back
to set the wrong right and not allow the perpetuation of the wrong
doing. The inherent power of the Court will not only be available
in such cases, but it is bound to be exercised in that manner in the
interest of justice. The same view was taken in Surjit Pal Vs.
Prabir Kumar Sun, AIR 1986 Calcutta 220 and Hari Nandan
Agrawal and another Vs. S.N. Pandita, AIR 1975 Allahabad 482.
15. I will be failing in my duty, if I do not mention
that there were conflicting views expressed in various decisions of
various High Courts regarding applicability of Order 21 Rule 32
in respect of decrees of prohibitory injunction. Some of the High
Courts took a view that sub-rule (5) of Rule 32 of Order 21 cannot
be invoked to enforce a decree of prohibitory injunction, while
some Courts have taken contrary view. However, the controversy
can be said to be put to rest by bringing the explanation below
sub-rule (5). The statement of objects and reasons of CPC
(Amendment) Act, 2002, makes the position clear that the
Explanation to Rule 32 was added on the basis of the report of
Law Commission. Thus, the intention of the Parliament and legal
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mandate is to implement the prohibitory injunctions in execution
proceedings.
16. On the basis of principles of law laid down by
various High Courts, there is no doubt that the Executing Court is
not justified in closing the matter about delivery of possession on
a hyper technical ground that decree for prohibitory injunction
cannot be enforced in the manner prayed by the decree holder.
The decision is bad in law and if this decision is permitted to
stand, it will lead to a situation of lawlessness and the decree
holder will be compelled to file another suit for possession. This is
not the intention of Order 21 Rule 32 (5) and the Explanation.
The duty of the Court is to see that the inherent powers are
exercised when needs to be exercised, otherwise the litigant will
loose faith in Courts and they may resort to other illegal short
cuts than approaching the Civil Court."
9. 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.
10. In the application which had been filed by the decree-
holders before the executing Court specific prayer was made for
directing the judgment-debtors 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
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be granted to the decree holders in exercise of power under Order 21
Rule 32 of the CPC and it would not be necessary for the decree
holders to claim only those reliefs which are specifically mentioned
therein.
11. 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 holders have alleged violation of decree for
permanent injunction by the judgment-debtors and have prayed for
removal of their construction and delivery of vacant possession. 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-
holders as not maintainable.
12. It has been observed in passing by the executing Court that
the decree holders have not been able to prove that the decree has been
violated by the judgment-debtors and they have taken possession of the
suit land, but it does not appear that while arriving at such a finding, the
executing Court has evaluated the evidence which has been brought on
record by the parties before it including the report of the Commissioner
which had been appointed by itself. For arriving at a finding either way
it was imperative for the executing Court to have marshalled and
evaluated the material on record and given its reasonings for arriving at
any such finding. The same has not done by it hence its finding that
decree holders have not proved their case is vitiated.
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CHOURASIA
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13. 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 holders 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
hereinabove. It is however, made clear that this Court has not expressed
any opinion on merits of the contentions of the respective parties.
13. With the aforesaid, the revision is allowed and disposed off.
(PRANAY VERMA)
JUDGE
jyoti
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CHOURASIA
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