Punjab-Haryana High Court
Hamir Singh And Another vs Makhan Singh And Others on 1 October, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
Civil Revision No.4114 of 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.4114 of 2011 (O&M)
Date of decision: 01.10.2013
Hamir Singh and another
....Petitioners
Versus
Makhan Singh and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. Mohinder Singh Joshi, Advocate, for the petitioners.
Mr. S.S. Salar, Advocate, for the respondents.
*****
PARAMJEET SINGH, J.
Instant revision petition has been filed for quashing the order dated 26.02.2011 passed by learned Additional Civil Judge (Senior Division), Nabha, vide which the petition under Order 21 Rule 32 of the Code of Civil Procedure (for short 'CPC'), has been dismissed.
Brief facts of the case are that petitioners along with Gurdev Singh, Kaka Singh and Mohinder Singh filed a civil suit against Charan Singh, Teja Singh, Makhan Singh and Ravinder Singh. The said suit was decreed against the respondent/defendants - Charan Singh, Teja Singh, Makhan Singh and Ravinder Singh. The decree became final. Thereafter, for non-compliance of the decree, petition under Order 21 Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -2- Civil Revision No.4114 of 2011 Rule 32 read with Section 151 CPC was filed before the learned Additional Civil Judge (Senior Division), Nabha.
Vide impugned order, learned trial court framed the following issues: -
"1. Whether the respondent dis-obeyed the order dated 3.2.2003 passed by Additional Civil Judge (Senior Division), Nabha? OPA
2. Whether the present petition is not maintainable? OPR
3. Whether the applicant has not come to the court with clean hands and has concealed the material facts from this court, if so its effect? OPR
4. Relief."
After affording opportunity to the parties to lead evidence, petition was dismissed vide impugned order. Hence this revision petition.
I have heard learned counsel for the parties and perused the record.
During the pendency of this revision petition, Tehsildar, Nabha, was directed to appoint Local Commissioner. In compliance of the order, Sh. Jagsir Singh, Naib Tehsildar, Nabha, was appointed to demarcate the spot and submit the report. On 13.09.2013, affidavit of Tehsildar, Nabha, along with demarcation report in vernacular was submitted in Court and the same were taken on record.
Relevant extract from the affidavit reads as under: -
"4. As per revenue record of village Agoul Tehsil Nabha the Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -3- Civil Revision No.4114 of 2011 owner of Khasra No.1184 and 1185 are Gurdev Singh s/o Maddi 1/2 share, Kaka Singh 1/8 share, Hameer Singh (petitioner) 1/8 share, Mohinder Singh 1/8 share and Modan Singh 1/8 share all sons of Gurdial Singh, total measuring 4 Biswas.
Naib Tehsildar Nabha demarcated Khasra No.1184 and 1185 at the spot and found that Khasra No.1185 (5 Karams x 8 Karams) is in the possession of Makhan Singh respondent who is using it to dump the roori. Another Khasra No.1185 (5 Karams x 8 Karams), Makhan Singh respondent has made (2, 1/2 x 8 Karams) an approach passage for his house and another (2, 1/2 x 8 Karams) are in the possession of Hameer Singh Petitioner. Also in compliance with the order of the Hon'ble High Court permanent makrs have been fixed on the demarcated land."
From the perusal of the report it is clear that respondent- judgment-debtors are still in possession of the area i.e. khasra Nos.1184 and 1185 and there is complete non-compliance of the terms of the decree dated 03.02.2003 passed by learned Additional Civil Judge (Senior Division), Nabha.
Charan Singh and Ravinder Singh, respondents No.3 and 4, respectively, are stated to have expired during the pendency of this revision petition and their LRs have been brought on record. So far as the punishment is concerned, no action can be taken against the LRs.
Admittedly, the suit for permanent injunction was decreed with regard to khasra Nos.594 (3-10), 1184 (0-2) and 1185 (0-2) situated in village Agol vide judgment and decree dated 03.02.2003, which has Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -4- Civil Revision No.4114 of 2011 become final. In violation of the terms of the decree, vide which the respondent-judgment-debtors were restrained from interfering in the possession of the abovesaid khasra numbers, they have encroached upon certain parts of khasra Nos.1184 and 1185. Even latest report, which was sought by this Court from the Tehsildar, clearly reveals the encroachment by Makhan Singh.
In view of the violation, court has power to proceed under Order 21 Rule 32 CPC, which reads as under: -
"32. Decree for specific performance for restitution of conjugal rights, or for an 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 willfully failed to obey it he decree may be enforced the case of 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) Where the party against whom a decree for specific performance or for an injunction has been passed in a corporation the decree may be enforced by the attachment of the property of the corporation or with the leave of the court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force month ,if the judgment debtor has not Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -5- Civil Revision No.4114 of 2011 obeyed the decree and the decree holder has applied to have attached property sold, such property may be sold; and out of the proceeds the court may award to the decree holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment debtor on his application.
(4) Where the judgment debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(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 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.
Explanation.--For the removal of doubts, it is hereby declared that the expression "the act required to be done" covers prohibitory as well as mandatory injunction." In Kanwar Singh Saini vs. High Court of Delhi, 2011(4) R.C.R. (Civil) 402 Hon'ble Supreme Court, while dealing with provisions of Order 21 Rule 32 viz-a-viz Order 39 Rule 2-A CPC has observed that in case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the executing court under Order XXI Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -6- Civil Revision No.4114 of 2011 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Where a decree is for an injunction, and the party against whom it has been passed has wilfully disobeyed it, the same may be executed by attachment of his property or by detention in civil prison or both. The provision of Order XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do some act and also to the cases where he is abstained from doing an act. Still to put it differently, a person disobeys an order of injunction not only when he fails to perform an act which he is treated to do but also when he does an act which he is prohibited from doing. Executing of an injunction decree is to be made in pursuance of the Order XXI Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible.
Similar observations have been made by Kerala High Court in CRP No.104 of 2008 - Valsamma and others vs. Abraham and another decided on 30.11.2012.
Reference can also be made to the judgment of this Court in Gurcharan Kaur vs. Ajit Singh and another, 2010(2) PLR 467 wherein this Court held as under: -
"The court cannot be rendered helpless by contending that under Order 21 Rule 32 CPC, restoration of possession to the Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -7- Civil Revision No.4114 of 2011 decree holder cannot be ordered even if the decree holder is dispossessed by the judgment debtor in violation of decree of permanent injunction. To accept this contention would amount to giving premium to the judgment debtor who has violated the decree with impunity. If this is permitted, the entire system of rule of law and administration of justice would crumble. Decree holder who succeeds in the suit would have no faith in the system of administration of justice if in spite of having succeeded, he cannot reap the fruits of the decree and on the other hand, the judgment debtor would be at liberty to violate the decree with impunity. Such an absurd position or interpretation of law cannot be accepted. It has been rightly held in the case of Inder Singh (supra) that under Order 21 Rule 32 CPC, restoration of possession of the suit property to the decree holder can be ordered if direction of permanent injunction is violated by the judgment debtor. Similarly, in the case of Krishnan Namboodiri (supra) it has been rightly held that the executing court even by invoking section 151 CPC can order delivery of possession to decree holder who is dispossessed in violation of decree of prohibitory injunction. By detention of judgment debtor in civil prison for violation of the decree, the decree holder would not get anything. The decree which has been passed by the court has to be honoured and executed. If the possession of the suit property is not delivered to respondent no. 1 decree holder, it would make a mockery of administration of justice."
From the provisions of Order 21 Rule 32 CPC and authorities referred to above it is amply clear that procedure to be followed on an application under Order 21 Rule 32 CPC is specifically entailed under Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -8- Civil Revision No.4114 of 2011 sub-rules (1), (3) and (5). The decree-holder can seek detention of judgment-debtor or attachment of property of judgment-debtor or both and court can order either of these on satisfaction of violation of decree of injunction. In fact, under sub-rule (3) the decree-holder can apply for sale of attached property, whereof from the sale proceed decree-holder may be compensated for damage and waste caused by violation of decree. Similarly under sub-rule (5) the court may direct the decree- holder to do any act required to be done under the decree by the decree- holder on the expenses of judgment-debtor. The essence of this sub-rule is that the decree-holder gets an opportunity for restoration of original position of property at the expense of judgment-debtor who violated the decree.
In the instant case, from the perusal of the impugned order, it is clear that Hamir Singh AW1 has appeared before the court but his cross-examination was not carried out. From the perusal of demarcation report, possession of Charan Singh and Teja Singh has been shown over khasra numbers 1184 and 1185 including passage wherein toilets have been constructed and tethering of cattle is there. Trial court has directed that suit for possession could be filed and it cannot be executed in view of Order 21 Rule 32 CPC. Admittedly, the decree has been passed whereby the respondents have been restrained from interfering in possession of khasra numbers mentioned therein.
Once the finding has been recorded and has become final and Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -9- Civil Revision No.4114 of 2011 the demarcation report clearly indicates the possession in the hands of judgment-debtors by way of construction of toilets and tethering of cows etc., it certainly amounts to violation of decree. Once decree stands violated, it is required to be enforced. Learned trial court can order detention of the judgment-debtors in civil imprisonment in addition to issuing appropriate direction for removal of the obstructions created after decree. In view of provision of Order 21 Rule 32 CPC as discussed hereinbefore, a decree can be enforced by attachment and sale of property of the judgment-debtors and civil imprisonment. Rule 32 does not prohibit the trial court to issue direction to the judgment-debtors to remove the obstructions, which they would have created in violation of the decree and even the possession can be restored. The court can enforce a decree by issuing appropriate order.
In this view of matter, learned counsel for the respondents stated that judgment-debtors are prepared to comply with the terms of the decree and vacate the illegal possession of the parcel of the land in their possession.
I think that this prayer of the learned counsel for the respondents is quite fair and reasonable. Respondents-judgment-debtors are directed to deliver the possession to the petitioners within one month from today otherwise trial court shall pass appropriate orders. In doing so, the trial court shall give an opportunity to the petitioners to lead evidence for proving the encroachment and pass appropriate orders with Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh -10- Civil Revision No.4114 of 2011 regard to detention in civil imprisonment or attachment of property or both. Parties are directed to appear before the trial court on 30.10.2013.
Present revision petition is disposed of in above terms.
(Paramjeet Singh) Judge October 01, 2013 R.S. Singh Ravinder 2013.10.21 16:38 I attest to the accuracy and integrity of this document Chandigarh