Madhya Pradesh High Court
Dulichand vs Anok Singh on 13 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 13th OF FEBRUARY, 2024
CIVIL REVISION No. 104 of 2021
BETWEEN:-
DULICHAND S/O DEVRAM GURJUR, AGED ABOUT 61 YEARS,
OCCUPATION: AGRICULTURE VILL-BHATAYAN BUJURG, TEH.
KASRAWAD (MADHYA PRADESH)
.....PETITIONER/DECREE HOLDER
(MRS. SWATI SHARMA, ADVOCATE FOR PETITIONER)
AND
ANOK SINGH S/O BABUSINGH RAJPUT, AGED ABOUT 59
1.
YEARS, VILL-LODHI TEH. KASRAWAD (MADHYA PRADESH)
KANCHAN BAI W/O ANOK SINGH, AGED ABOUT 55 YEARS,
2. VILLAGE LODHI TEHSIL KASRAWAD DIST KHARGONE
(MADHYA PRADESH)
JETENDRA S/O ANOK SINGH RAJPUT, AGED ABOUT 40
3. YEARS, VILLAGE LODHI TEHSIL KASRAWAD DIST
KHARGONE (MADHYA PRADESH)
DHARMENDRA S/O ANOK SINGH RAJPUT, AGED ABOUT 33
4. YEARS, VILLAGE LODHI TEHSIL KASRAWAD DIST
KHARGONE (MADHYA PRADESH)
.....RESPONDENTS/JUDGMENT DEBTORS
(NONE FOR THE RESPONDENTS)
This revision coming on for orders this day, the court
passed the following:-
ORDER
Heard on the point of admission.
This civil revision has been preferred by the
petitioner/decree holder under Section 115 of the Code of Civil
Procedure, 1908, being aggrieved by the order dated 29.01.2021
passed by Civil Judge, Class-1, Kasrawad, District -
Mandleshwar (MP) in Execution Application No.06 of 2017 by
which the application of the enforcement of the decree was filed
as it was being willfully disobeyed by the respondent/judgment
debtor and the same was rejected by the executing court.
(2) The facts of the case in nutshell is that on 08.09.2016, a
decree was passed in the original suit No.10-A of 2016 against
the respondents and a permanent injunction order was passed
restricting the respondents/judgment debtors not to create any
obstacles in the way of the petitioner/decree holder and also not
to interfere with the natural flow of rain water which crosses
through the 'med' of the agricultural land of the ownership of
petitioner/decree holder.
(3) That, thereafter the respondents had started disobeying the
decree court and started disturbing the natural flow of the water
from the land of the ownership of the petitioner and of the
adjoining government land. Later on, when the petitioner
opposed such act of the respondent as against the decree dated
08.09.2016, the respondent misbehaved and gets aggressive and
in this aggression, the respondent gets started abusing and
misbehaving with the petitioner and, as a result, of which the
petitioner even reported the matter to the Superintendent of
Police in writing and his personal secretary has refused to
register the complaint and the copy of written report dated
22.02.2017 has been annexed with this application for perusal.
(4) That, the petitioner then filed an application before the
learned trial Judge mentioning the disobedience caused by the
respondent towards the decree and made a prayer of sending the
respondents to civil jail because of the disobedience so caused
and the copy of application has been filed for perusal.
Thereafter, the case was registered as Ex.A No.06 of 2017 in the
court of Civil Judge, Class-1, Kasrawad, District - Mandleshwar.
In this case, the respondents filed the power of the Advocate on
22.08.2017, but inspite of ample opportunities provided to the
respondents, no reply to the application was filed and the trial
court has proceeded ex-parte on 10.04.2019.
(5) That, on 29.01.2021, the trial court dismissed the
application filed by the petitioner and being aggrieved by the
aforesaid order, the petitioner/decree holder has preferred this
revision on the ground that the order of trial court is wrong,
illegal and against the settle principles of law. It is averred that
trial court has ignored the conduct of the respondents that even
after appearing in the case, the respondents neither opposed the
application nor produced any evidence. It is stated that trial
court erred in not considering the unrebutted evidence of the
petitioner. The trial court in para 9 of the impugned order has
mentioned that since one Bakaji (who was present at the time of
the clash between the petitioner and respondent) and the
petitioner/decree holder was unable to examine the Bhikaji.
Hence, prays for setting-aside the impugn order passed by the
trial court and attached the property of respondent/judgment
debtor.
(6) No one has appeared on behalf of the respondents.
(7) After hearing counsel for the petitioner/decree holder and
on perusal of the record, Order 21 Rule 32 of Code of Civil
Procedure, 1908, is relevant, which reads as under:-
Order 21 Rule 32 CPC.
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
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 injunctions 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 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
decree-holder such compensation s 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 here, 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.
(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.
(8) On perusal of the record, it was found that the
compromise decree has been passed on 08.09.2016 and after
hearing both the parties, the respondents/judgment debtors was
directed not to create any hindrance or obstacles in free flowing
of the rain water which crosses through the agricultural land of
the petitioner/decree holder.
(9) It has been stated that when the respondents had started
disobeying the decree in respect of above land then the
petitioner has filed the execution proceedings before the trial
court and the respondents was proceeded ex-parte and crosss-
examination of evidence of petitioner has not been done by
respondents. On perusal of the record of trial court, it was found
that the evidence of petitioner was unrebutted and unchallenged
and that there is no reason to disbelieve the evidence of
petitioner.
(10) In view of the aforesaid discussion and in the considered
opinion of this Court, it was found that the respondents has not
disobeyed the impugned judgment and decree passed by the trial
court and hence the impugned order passed by trial court is set-
aside. The executing court is directed to execute the impugned
decree in light of Order 21 Rule 32 of CPC.
(11) With the aforesaid, this civil revision is allowed and
disposed of, in above terms.
(12) Certified copy, as per Rules.
(HIRDESH)
Arun/- JUDGE
