Orissa High Court
Sabitri Khuntia And Ors. vs Ram Avatar Modi on 4 August, 2006
Equivalent citations: 2006(II)OLR445
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. This is a revision by the Judgment-debtors of Execution Case No. 52 of 2001 in the Court of learned Civil Judge (Sr. Division), 1st Court, Cuttack challenging the legality of the order passed by the said Court in Misc. Case No. 115 of 2002 rejecting their objection filed under Section 47 of the C.P.C.
2. The brief fact leading to the present situation can be narrated summarily as follows:
The present petitioners as plaintiffs filed Title Suit No. 49 of 1997 in the Court of Civil Judge (Sr. Division), 1st Court, Cuttack praying for declaration of their title over the suit land described in the schedule of the plaint. The present opp. party as defendant while denying the pleadings and claim of the plaintiffs filed counter claim for damages and permanent injunctions. The Court after considering the evidences, dismissed the suit of the plaintiffs, but allowed the counter-claim of the defendant in part allowing the prayer for permanent injunction. In that decree the plaintiff-petitioners were restrained from interfering with the possession of the defendant-opp. party over the suit land. The decree of permanent injunction was put to execution by the present opp. party in the above noted Execution Case. In that execution specific prayer was made for removal of a cowshed allegedly raised by the present petitioners over the suit land after the date of decree. The J. Dr-petitioners raised objection about the executability of the decree taking the specific plea that their cowshed was already there on the suit land much before passing of the decree and there being no specific decree for demolition or removal of the cowshed they are not liable to be evicted and the structure is not liable to be removed. Learned Executing Court rejected the objection with an observation that the decree of permanent injunction being specifically there against the petitioner-J. Drs, the structure on the suit land can be removed while executing the decree. The said order of the Executing Court is now under challenge in this revision.
3. Mr. Bose, learned Counsel appearing for the petitioners submits that when the Executing Court was not sure as to whether the cowshed in question was there on the suit land before passing of the decree, it was not within its jurisdiction to reject the objection and to say that the decree is executable as per the provisions of Order 21, Rule 32, C.P.C. Mr. Bose also pointed out that if the execution is carried and the present petitioners ultimately succeed in the appeal, then they will have to be restituted and in the process multiplicity of litigations and proceedings will arise.
4. . Mr. Mohanty, learned Counsel appearing for the opp. party on the other hand, contends that the decree of the trial Court being specific about the possession of the opp. party over the suit land and direction being there that the petitioners are not to interfere with such possession of the opposite party, the Executing Court had no authority to go behind the decree and re-decide the issue of possession. According to him, the decree was executable as per the provisions of Order 21,Rue 32, CPC as in the Explanation of that provision, it has been clarified that it covers prohibitory, as well as mandatory injunction.
5. The fundamental principle relating to execution is that an Executing Court cannot go behind the decree and re-decide the issue involved in the suit or appeal. Only when there is statutory bar or when the decree is so vague that it cannot be executed then and then only, the Executing Court can refuse to execute the decree. In the present case, the decree of the trial Court specifically says that the present opp. party is in possession of the suit land and decreeing his counter claim the Court also directed mandatory injunction against the plaintiff-petitioners. The decree being specific about the possession of the land in question, there was no scope for-the Executing Court to reopen the matter to decide the issue of possession. That apart, the issue as to whether the cowshed was there before or was constructed after the decree is also of no consequence as the trial Court in its judgment has already dealt with that aspect and has categorically mentioned that the petitioners had no legal right for such alleged construction on the suit land. It is to be noted that the Court of appeal also refused to grant stay of the execution of the decree of the trial Court. Order 21, Rule 32, CPC clearly says that decree of injunction whether prohibitory or mandatory can be executed. In such situation, the impugned order of the Executing Court does not appear to be illegal or unreasonable in any way and so does not call for any interference in exercise of revisional power of this Court. Consequently, the revision is found to be without any merit and is dismissed.