Madhya Pradesh High Court
Ratiram vs Devi Ram on 1 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:6083
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 1 st OF MARCH, 2025
WRIT PETITION No. 8940 of 2013
RATIRAM
Versus
DEVI RAM AND OTHERS
Appearance:
Shri Gourav Mishra - Advocate for petitioner.
Shri K N Gupta - Senior Advocate with Shri Rinku Shakya - Advocate for
respondents.
ORDER
This petition under Article 227 of the Constitution of India has been filed by
the petitioner seeking following reliefs:-
"This Hon'ble Court may kindly be pleased to allow this petition and the
order dated 22.11.2013 contained in Annexure P-1 and order dated
06.09.2013 contained in Annexure P-2 may kindly be quashed and this
Hon'ble Court may kindly be pleased to direct the Executing Court/Civil
Judge Class-1 Sheopur to hold the summary enquiry and also appoint
the Court Commissioner not below the rank of Tehsildar to get site
inspection and submit the report before the Executing Court and
Executing Court may be directed to decide the Execution case according
to law in the interest of justice. Cost may kindly be awarded throughout.
Any Other suitable order may kindly be awarded in the facts and
circumstances of the case."
In brief, the facts of the case are that earlier the respondent-plaintiff No.1,
Deviram had filed a civil suit for permanent injunction in respect of land bearing
survey No.1626/2 area 2 Bigha 5.2 Biswa situated at Tehsil Sheopur, Shivpuri
Road in front of Dudha Dairy District Sheopur. ln the civil suit,
petitioner/defendant No.l had filed written statement and denied the plaintiff's
claim and also filed a counter-claim stating that the plaintiff had filed the suit with
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an intention to grab the land of the petitioner/defendant No.l bearing survey
No.1647/1 area 16 Biswa survey No1650/2 area 1 Bigha 11 Biswa which is
situated adjacent to the aforesaid land in question. Learned trial Court vide
judgment and decree dated 21.12.2009 allowed the suit filed by plaintiff Deviram
and counter-claim filed by defendant No.1 with direction to the defendants No.1 to
3 not to interfere in the land bearing survey No.1626/2 ख Rakba 2 Bigha 5.2
Biswa which belonged to the plaintiff and respondent and plaintiff was directed
not to interfere in the land bearing survey No.1647/1 Rakwa 16 Biswa and 1650/2
Rakwa 1 Bigha 11 belonging to defendant No.1 but rejected the counter-claim
filed by defendant No.2 and 3. The petitioner/counter-claim decree
holder/defendant No.l then filed an application under Order 21 Rule 11 CPC for
execution of counter-claim decree passed by learned trial Court which was
registered as Case No11/2009 X 2010 (Deviram Vs Ratiram & Ors) with the
allegation that the respondent-plaintiffs No1 and 2 Deviram and Gopal are
violating the terms of the directions made against them in the decree passed in
counterclaim on 21.12.2009. The petitioner Ratiram also filed an application in
execution case No11/09 X 10 (Ratiram Vs Deviram & Anr.) alongwith field map
marking encroachment made by the judgment debtor by yellow colour. A reply to
the application was filed by judgment debtor. The learned Executing Court/Civil
Judge Class-I Sheopur had rejected the execution application under Order 21 Rule
11 CPC and also the application under Order 21 Rule 32 CPC of
petitioner/counter-claim decree holder/defendant No.1 vide order dated
06.09.2013. Against the said order dated 06.09.2013, an appeal was preferred by
the petitioner before 2nd Additional District Judge, Sheopur which was also
dismissed vide order dated 22.11.2013. Assailing the orders dated 06.09.2013 and
22.11.2013, the present petition has been filed.
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Learned counsel for the petitioner has submitted that the impugned orders
passed by the learned Executing Court are illegal, without jurisdiction and contrary
to the procedure laid down under Order 21 Rule 11 CPC and Order 21 Rule 32
CPC which were very much applicable to the execution of the decree.
It is further submitted that the impugned orders passed on application under
Order 21 Rule 32 CPC of the petitioner/counter claim decree holder is patently
illegal, without jurisdiction and this impugned order has been passed without
holding enquiry/summary enquiry and without spot inspection of the disputed site.
It was further submitted that the learned Executing Court had erred in
understanding that the order of temporary injunction passed in earlier application
No40/2008 Misc. Civil Case (Ratiram Vs. Deviram) was in respect of another side
of the land in question, in respect passed in counter-claim decree was running
against the respondent/judgment debtor, but this factual aspect was overlooked by
the learned Executing Court hence the findings recorded in Para 10 and 11 of the
judgment dated 06.09.2013 are patently illegal without jurisdiction and contrary to
law and also contrary to factual position of the sit, hence, the impugned orders
dated 06.09.2013 and 22.11.2013 be set-aside.
Per contra, learned counsel for the respondent submits that appeal is not
maintainable against an order passed under Order 21 Rule 32 CPC and neither
Misc. Appeal could had been preferred under Order 43 Rule 1 CPC against such
order nor appeal under Section 96 CPC was maintainable, hence, no illegality
could be said to have been committed by the learned Appellate Court in rejecting
the appeal preferred by the petitioner, thus prayed for dismissal of the petitioner
being sans merits.
Heard counsel for the parties and perused the record.
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Order 21 Rule 32 provides for execution of decree for specific performance,
for restitution of conjugal rights or for an injunction. Order 21 Rule 32 C.P.C.
clearly lays down as to how a decree for injunction can be executed. Order 21 Rule
32 C.P.C says that where a decree for injunction is passed and where the party
against whom the decree is passed had an opportunity of obeying the decree but
had willfully failed to obey it, the decree may be enforced by his detention in the
civil prison, or by the attachment of his property, or by both and this is the only
mode of execution of a decree for permanent injunction.
It is for the decree-holder to prove the willful disobedience of the decree by
the judgment-debtor. "Willful disobedience" is a question of fact, existence of
which has to be inferred from direct or circumstantial evidence. In a particular
case, the decree-holder may establish the factum of willful disobedience on the
part of the judgment-debtor, by the circumstances of the case including the nature
of the plea taken by the Judgment-debtor in answer to the execution case. If the
conduct of the judgment-debtor as revealed from his plea read with the
circumstances of the case leads to a conclusion that the said conduct was a
deliberate one, and the judgment-debtor was consciously attempting to ignore the
decree, the Executing Court may be justified in drawing -the inference that there
has been a wilfull disobedience. The nature and quantum of the evidence or
material to draw such an inference, and to discharge the onus cast on the decree-
holder cannot be formulated in abstract terms. Each case would depend upon the
facts and circumstances involved therein.
From perusal of the order dated 06.09.2013, it appears that the said order
had been passed without holding any inquiry. If the court below would have
conducted an enquiry in order to provide an opportunity for the decree-holder to
prove the violation of the perpetual injunction, it may have an evidence in order to
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strengthen his case as interest of justice requires that proper opportunity should be
given to the decree-holder to substantiate his case.
So far as the question of maintainability of appeal is concerned, since the
petitioner has also challenged the order dated 06.09.2013, therefore, the question
of maintainability of appeal would make no difference.
Consequently, this Court set asides the order dated 06.09.2013 and remits
the matter to the Civil Judge, Class I Sheopur to decide it afresh after holding an
inquiry and affording proper opportunity to the petitioner.
(MILIND RAMESH PHADKE)
JUDGE
ojha
