Madhya Pradesh High Court
Kailash S/O Durga Prasad Gattani ... vs Rajrani W/O Thakurdas Ji Joshi Deceased ... on 29 May, 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 29th OF MAY, 2024
CIVIL REVISION No. 91 of 2023
BETWEEN:-
KAILASH S/O DURGA PRASAD GATTANI DECEASED
THROUGH LRS. VIKAS GATTANI S/O KAILASH CHANDRA
1. GATTANI, AGED ABOUT 49 YEARS, OCCUPATION:
BUSINESSMAN RESIDENT OF BUNGALOW NO. 46 CRPF ROAD
NEEMUCH DISTRICT NEEMUCH (MADHYA PRADESH)
KAILASH S/O DURGA PRASAD GATTANI DECEASED
THROUGH LRS. SMT. KRISHNA GATANI W/O
2. KAILASHCHANDRA GATTANI OCCUPATION: NOTHING
BUNGLOW NO. 46, CRPF ROAD NEEMUCH (MADHYA
PRADESH)
KAILASH S/O DURGA PRASAD GATTANI DECEASED
3. THROUGH LRS. VIBHA W/O PRAVEEN BHADADA BHADADA
MOHALLA BHILWADA (RAJASTHAN)
KAILASH S/O DURGA PRASAD GATTANI DECEASED
4. THROUGH LRS. ABHA W/O PRAMOD SOMANI R/O GANDHI
CHOWK CHITTORGARH (RAJASTHAN)
.....PETITIONERS
(SHRI PRIYESH GHOSH, ADVOCATE FOR PETITIONERS)
AND
RAJRANI W/O THAKURDAS JI JOSHI DECEASED THROUGH
RAMWESHWAR S/O RAMSWAROOP AHIR, AGED ABOUT 57
YEARS, RESIDENT OF GATTANI CHAL DISTRICT NEEMUCH
(MADHYA PRADESH)
.....RESPONDENT
(NONE FOR THE RESPONDENT)
This revision coming on for orders this day, the court
passed the following:-
2
ORDER
This civil revision has been preferred by the petitioners
under Section 115 read with Section 151 of the Code of Civil
Procedure, 1908, being aggrieved by order dated 28.09.2022
passed by the Court of Civil Judge, Class-1, Senior Division,
District Neemuch (MP) in Execution Proceedings Case
No.1700110/2016 (Kailash Vs. Rajrani) whereby the execution
application preferred by him has been dismissed.
(2) The decree holder had instituted an action before the Civil
Judge, Class-I, Senior Division, District Neemuch (MP) for
permanent injunction restraining the judgment debtors from
interfering with their possession over the suit land bearing House
No.808 473E/2 Gattani Chhal, Railway Colony, Baghana, District
Neemuch (MP). By judgment and decree dated 28.09.2022, the
claim was decreed by the trial Court and the judgment-debtor was
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 of 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) The decree holder has 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 taking the possession of the suit land. Prayer was made for
issuance of appropriate direction directing the judgment debtors to
deliver the possession of the suit land to decree holder and for
punishing them for willful disobedience of the decree. The
judgment-debtor contested the application by filing their reply but
on 23.07.2022 the executing Court has passed the order by stating
that the judgment debtor has no right to interfere with the peaceful
possession of the decree holder and direct the decree holder to
have legal action for recovery of possession.
(4) By the impugned order the execution application preferred
by the petitioners had been dismissed by the executing Court by
observing that since the decree in favour of decree holder is for
permanent injunction and held that executing court does not go
beyond the decree and the executing court has no right to issue
possession warrant in regard to the judgment debtor and has
rejected the execution proceedings by holding that the 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 holder has not proved that the judgment-debtors have taken
possession of the suit land belonging to them.
(5) Though submission has been made by counsel for the
petitioners 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
is to file the fresh legal action.
(6) 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. 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 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) AIHC7 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 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."
(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. 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.
(12) With the aforesaid, the revision is allowed and disposed of.
(13) Certified copy, as per Rules.
(HIRDESH)
Arun/- JUDGE
ARUN
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NAIR
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NAIR
Date: 2024.05.30 15:57:52 +05'30'
