Punjab-Haryana High Court
Smt. Dalip Kaur And Ors. vs Harbans Singh on 15 May, 1987
Equivalent citations: AIR1989P&H16, AIR 1989 PUNJAB AND HARYANA 16, (1988) 2 REV LR 32, 1987 REV LR 508, 1988 REVLR 2 32, 1987 PUNJ LJ 487, (1987) 92 PUN LR 404, ILR (1988) 1 P&H 415, (1988) ILR 1 P&H 415, (1988) 1 CURCC 459
ORDER S.P. Goyal, J.
1. Harbans Singh respondent entered into an agreement dt. March, 25, 1982 with Smt. Dalip Kaur petitioner No. 1 whereby the latter agreed to sell the land measuring 30 kanals, 9 marlas for consideration of Rs. 55,000/-. He filed a suit for permanent injunction restraining her from alienating the said land in which a consent decree was passed on Jan., 21, 1983. In spite thereof petitioner No. 1 sold the land and executed sale deed in favour of petitioner No. 2 on Aug., 4, 1983. When the deed was presented to the Sub-Registrar for registration, Harbans Singh appeared there and apprised him of the decree. Still the deed was registered. So he moved the present application for execution of the decree and for taking contempt proceedings. Respondents Nos. 1 and 6 only seem to have filed their replies who admitted the factum of the sale but denied the existence and knowledge of the alleged decree. The Executing Court exonerated respondents Nos. 3 to 5 and 7; holding respondents Nos. 1, 2 and 6 (now petitioners Nos. 1, 2 and 6) guilty of the disobedience of the decree, set aside the sale and ordered the attachment of the salary of petitioner No. 6 and attachment of the suit land as well as other property of petitioners Nos. 1 and 2. Aggrieved thereby all the respondents in the executing court have come up in this revision although the prayer against petitioners Nos. 3, 4, 5 and 7 for taking action had been declined.
2. The proceedings under Order 21, Rule 32 of the C.P.C. are execution proceedings and order of attachment of property or detention in civil prison can be passed only against the judgment-debtor and not a third party. There is also no jurisdiction under the said rule to set aside any sale made in disobedience of the decree of injunction. So, the order made against petitioners Nos. 2 and 6 for the attachment of the salary, the land sold and other property and the setting aside of the sale has to be quashed being wholly without jurisdiction.
3. So far as the judgment-debtor is concerned, he can be ordered to be detained in civil prison or his property attached, but that too can be done only for the enforcement of the decree. The land respecting which a decree for permanent injunction restraining petitioner No. 1 from alienating it was passed, has since been sold. It is, therefore, not possible to enforce the decree either by attachment of the property of the judgment-debtor or by detaining him in civil prison. The proceedings under Rule 32 are not meant to punish the judgment-debtor for disobedience of the decree. If the judgment-debtor renders himself incapable of performing the decree, he may be liable to be proceeded against under the Contempt of Courts Act, but no action under Rule 32 can be taken by way of punishment to the judgment-debtor.
4. Even if for the sake of argument it may be accepted that the property of the judgment-debtor could be attached or he could be detained in prison, the facts of the present case did not justify such a course to be adopted. The decree-holder had sought the injunction restraining petitioner No. 1 from alienating the property because of the agreement of sale in his favour. The agreement of sale could be enforced by way of a suit for specific performance within three years. No suit, however, has been filed for the enforcement of that agreement. The decree-holder, therefore, has not even an actionable claim so far as the land subject-matter of the sale is concerned. The decree for injunction was also passed in violation of the provisions of Section 41(h) of the Specific Relief Act which provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. The proper and the only efficacious remedy for the respondent was to file a suit for specific performance of the agreement. If he had been put into possession in part performance of the agreement, it may have been possible for him to defend that possession by seeking a decree of permanent injunction. In the absence of the delivery of possession in part performance of the agreement, it is not possible to grant permanent injunction restraining the owner from transferring the property for all times to come. The decree-holder, therefore, has no subsisting right to enforce the decree against petitioner No. 1 as well.
5. For the reasons recorded above, this petition is allowed and the impugned order set aside. No costs.