[Cites 4, Cited by 0]
Patna High Court
Raju Kumar Yadav @ Raju Yadav vs Manoranjan Vishwash on 10 April, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.251 of 2025
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1. Raju Kumar Yadav @ Raju Yadav Son of Teras Yadav, R/o Village
Chandarpur Dumaria, P.S. Chautrawa, District West Champaran, at present
are R/o P.S. Chautrawa, District West Champaran.
2. Vinod Yadav, S/o Kishun Yadav, R/o Village Chandarpur Dumaria, P.S.
Chautrawa, District West Champaran, at present are R/o P.S. Chautrawa,
District West Champaran.
... ... Petitioner/s
Versus
Manoranjan Vishwash, Son of Late Ramesh Chandra Bishwash, Resident of
Village- Chutarwa Punarwas Colony, P.S. Chautrawa, District West
Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Chandrakant, Adv
Mr. Navin Kumar, Adv
Mr. Vaibhav Kumar Jha, Adv
Mr. Sudhanshu Prakash, Adv
For the Respondent/s : Mr. Md. Waliur Rahman, Adv
Mr. Nishant Kumar Sinha, Adv
Mr. Rajdeep Kumar, Adv
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CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
Date : 10-04-2026
Heard learned counsel of both the parties.
2. The present Civil Miscellaneous Application
has been filed for the following reliefs:-
"a. For issuance of writ of certiorari or
direction\order or writ for setting aside
order dated 19-10-2024 passed by Sub-
Judge, Senior Division-I, Bagaha in
Execution Case No. 1 of 2021, whereby and
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
where under the learned Court has rejected
the petition filed by the petitioners under
Section 47 of the Code of Civil Procedure.
b. For issuance of any other
appropriate writ/writs, order\orders,
direction/directions, for which petitioner
may deemed entitled under the fact and
circumstance of the case."
3. Learned counsel for the petitioners submits that
respondent/plaintiff had filed Title Suit No. 95 of 2015 for
permanent injunction against defendants/petitioners for not
making any interference on the possession of the
plaintiff/respondent over the suit properties. The above suit
was decreed and decree of permanent injunction was
granted in favour of the plaintiff/respondent, against which,
defendants/petitioners/judgment-debtor filed Appeal No. 3
of 2021 and plaintiff/respondent/decree holder has filed
Execution Case No. 1 of 2021. The decree-holder has
prayed for delivery of possession over the suit properties in
Execution Case No. 1 of 2021. In the aforesaid Execution
Case, the defendants/petitioners/judgment-debtor filed a
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
petition under Section 47 of the CPC, resisting the
execution proceedings and submitted that
plaintiff/respondent/decree-holder can not file execution
petition in Title Suit No. 95 of 2015 for delivery of
possession because neither any relief for recovery of
possession was prayed in the suit nor it was granted in
decree. Only permanent injunction has been granted in his
favour. Hence, the decree passed by the Court below is
totally vague and ambiguous and on this score also, the
present decree is not executable and decree-holder is not
entitled to recovery of possession from the
defendants/petitioners/judgment-debtor.
4. Learned counsel for the petitioners further
submits that proper procedure of dealing with
miscellaneous judicial cases has not been followed by the
Executing Court and petition of the petitioners was rejected
without examining the facts of both the parties and the
impugned order has been passed which is not sustainable in
the eye of law. Learned counsel has placed reliance on a
judgment passed by Hon'ble Andhra Pradesh High Court
in the case of G.Anandam versus Warangal Municipal
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
Corporation reported in 1997 1 ALD 587; 1997 1 ALT
434; 1997 1 APLJ 83; 1997 1 CivCC 606; 1996 0
Supreme(AP) 878;.
5. Per contra, learned counsel appearing on behalf
of the respondent/decree holder submits that he has filed the
present case for the execution of the judgment passed in
Title Suit No. 95 of 2015. The judgment-debtor has been
debarred by the Court from filing rejoinder on 23.04.2022.
The respondent/decree-holder, thereafter, filed an
application on 07.05.2022 for depositing the expenses of
Nazir and cost of deputation of Police force and Magistrate
and by the order of the Court, the decree-holder has
deposited the said expenses. Learned counsel further
submits that in the above Title Suit No. 95 of 2015, the
main issue was issue Nos. 5 and 6. Issue no. 5 was that
whether the plaintiff/respondent is in peaceful possession of
the disputed land and issue No. 6 was that whether the
plaintiff/respondent was entitled to get a permanent
injunction with respect to suit properties. Both the above
points were decided by the Court in favour of the decree-
holder /plaintiff /respondent. The Judgment-debtor/
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
defendants/petitioners had contested the said Title Suit No.
95 of 2015 and the judgment/decree was passed in full
knowledge of judgment-debtor. Learned counsel also
submits that present application under Section 47 of the
CPC has been filed by the judgment-debtor/petitioners only
to prolong the present execution case and the present
application of petitioners/judgment- debtor under Section
47 of the CPC is liable to be dismissed in light of Order
XXI Rule 32(2)(5) of the CPC. The judgment debtor is
forcefully getting a permanent structure constructed on the
suit properties even after the decree of permanent injunction
was passed against him. So, the respondent/decree-holder
has filed an application for recovery of possession through
the process of Court in which the learned Court has ordered
the local Police Station Chautarwa to maintain status-quo
of the suit properties.
6. After hearing learned counsel of both the
parties, the moot question for decision in this miscellaneous
appeal is that, for want of any decree of recovery of
possession, whether in a case of permanent injunction, the
defendant/judgment-debtor can be directed to deliver the
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
possession or not by the Executing Court. As per
submission of learned counsel for the respondent/plaintiff,
since the plaintiff was in peaceful possession of the disputed
land since filing of the suit and till judgment and decree
passed therein, hence, there was no cause of action
available to him at that time to sought for any further relief
regarding recovery of possession of the suit properties from
the defendant. He further submits that Issue No. 5 was
concerned with this fact and it was decided in his favour
and learned Trial Court found his possession over the suit
properties at the time of judgment and hence, permanent
injunction was granted in his favour.
7. Subsequently, the defendants/petitioners started
trying to dispossess the plaintiff/decree-holder from the suit
premises forcefully and hence, the plaintiff has filed
Execution Case and subsequent petition for recovery of
possession through process of the Court or Police force. In
this context, the provision under Order XXI Rule 32 of the
CPC is quite relevant which reads as follows:-
"32. Decree for specific performance
for restitution of conjugal rights, or for an
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
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................
3................
4................
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
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
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.
Illustration
A, a person of little substance, effects a
building which renders uninhbitable a
family mansion belonging to B. A, in spite of
his detention in prison and the attachment of
his property, declines to obey a decree
obtained against him by B and directing him
to revoe the building. The Court is of
opinion that no sum realizable by the sale of
A's property wold adequately compensate B
for the depreciation in the value of his
mansion. B may apply to the Court to
remove the building and may revocer the
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
cost of such removal from A in the
execution-proceedings."
8. After going through the above specific
provision as well as illustration, it clearly transpires that this
provision is meant for prohibitory as well as mandatory
injunction. The aforesaid provision specifically empowers
the Court that any act which requires to be done may be
done. So for compliance of injunction order and upon the
act being done, the expenses incurred may be ascertained in
such manner as the Court may direct and it also may be
recovered as if they were included in the decree. So the
above provision covers compliance of temporary,
prohibitory as well as mandatory injunction by the Court.
9. In order to buttress his argument, learned
counsel appearing on behalf of the
respondent/plaintiff/decree- holder placed reliance on the
judgment passed by Hon'ble Rajasthan High Court in the
case of Naurang versus Lrs of Late Sri Chunnilal and
others in Civil Revision Petition No. 145 of 2025. The
relevant paragraphs of the order reads as under:-
"12. Order XXI Rule 32(5) CPC vests
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
in the executing court the necessary power
to secure effective compliance of such
decrees. It clarifies that where a decree of
prohibitory injunction is rendered nugatory
by the wilful and unlawful act of the
judgment-debtor, particularly dispossession
of the decree-holder, the court may adopt all
measures essential to secure obedience,
including the restoration of possession. To
give full effect to an injunction decree, the
executing court may also remove every
obstruction set up in breach thereof, so that
the successful litigant may truly reap the
benefit of adjudication. Mere penal
consequences under the contempt
jurisdiction may not suffice; in appropriate
circumstances, restoration of possession
becomes the most efficacious mode of
enforcement. After protracted litigation, to
require the plaintiff to institute a fresh suit
for recovery of possession on account of the
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
subsequent acts of the defendants, which are
calculated to frustrate the judgment and
decree already passed, would be wholly
unjust and improper.
13. In the facts at hand, the decree in
categorical terms protected the possession
of the decree-holders over the suit land.
If, during or after the pendency of litigation,
the judgment-debtor has forcibly
dispossessed them in violation of the decree,
the civil court is not powerless. On the
contrary, it is under a bounden duty to act so
that its solemn adjudication is not reduced
to an illusory formality. The provisions of
law, coupled with the overarching duty of
the Court to protect the sanctity of its
process, empower it to ensure that the
decree-holder's possession is preserved
intact, and that he is shielded against any
further threat of intrusion by the adversary.
14. Upon careful consideration, I find
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
that the learned Civil Judge has committed
no legal error in declining the objections
and proceeding to secure compliance with
the decree. The impugned order is firmly
rooted in the object and spirit of Order XXI
Rule 32 CPC, in the settled principles of
execution law, and the overarching duty of
the court to ensure that its decrees are not
rendered hollow by subsequent unlawful acts
of any party."
10. Learned counsel further placed reliance on a
judgment reported in AIR 2009 Punjab And Haryana 188
(Kapoor Singh vs. Om Prakash) in which following
principle has been laid down:-
"Order XXI Rule 32(5)-Powers of
executing Court-Decree for specific
performance of contract and injunction
restraining judgment debtor from forcible
dispossession-Violation of injunction order-
Executing Court would have jurisdiction to
issue order of mandatory injunction for
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
restoration of possession-Decree holder
cannot be required to file another suit as he
had already obtained a decree in his favour
by spending much time and expense."
11. After going through the above entire facts, it
appears that although the petition filed under Section 47 of
the CPC by the petitioners/judgment-debtor has not been
registered as Miscellaneous Judicial Case but the entire
factual and legal aspects of the said petition and this case
has been well appreciated by the Executing Court in its
impugned order. It is well settled law that procedural law is
subservient to the substantial law and it is meant for
facilitating the substantial justice and in this case, not
mentioning the Miscellaneous Judicial Case Number
regarding the petition filed under Section 47 of the CPC,
does not vitiate the proceedings and make the order illegal
because the entire facts have been fully appreciated by the
learned Executing Court and it has categorically been held
in its order. The relevant paragraph of which reads as
under:-
"Further, in AIR 2009 Punjab and
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
Haryana 188 Kapoor Singh Vrs. Om
Prakash, it was held that in the event of
violation decree of permanent injunction by
dispossession of the decree holder by the
judgment debtor, the executing court has
jurisdiction to restore possession in favour
of decree holder who can't be compelled to
file another suit. Hence from above
discussions and verdicts of Hon'ble court, it
appears that decree of permanent injunction
can be enforced U/O 21 Rule 35 (2) in
addition to other mode of enforcement and
executing court have power to restore the
possession of decree holder, if he has been
dispossessed by the judgment debtor"
12. The decree holder, after getting a decree of
permanent injunction against the judgment-debtor after long
litigation, cannot be asked to file again another suit for his
subsequent dispossession or threat of dispossession on the
suit properties made by the defendant/judgment-debtor. On
the basis of aforesaid provisions under Order XXI, Rule
Patna High Court C.Misc. No.251 of 2025 dt.10-04-2026
35(2), the Executing Court has full jurisdiction and
competence to restore the possession in favour of decree-
holder and he cannot be compelled to file another suit,
otherwise judgment and decree passed in favour of decree-
holder would be frustrated and he would be deprived from
taking the fruit of decree.
13. Accordingly, I do not find any illegality and
impropriety in the impugned order dated 19.10.2024 passed
by learned Civil Judge, Senior Division-I, Bagaha, West
Champaran.
14. Hence, Civil Miscellaneous No. 251 of 2025
stands dismissed and accordingly, the earlier order of stay
of the proceedings of Execution Case No. 01 of 2021
passed by this Court on 26.03.2025 stands vacated.
(S. B. Pd. Singh, J)
Shageer/-
AFR/NAFR AFR
CAV DATE 24/03/2026
Uploading Date 10/04/2026
Transmission Date N/A
