Madhya Pradesh High Court
Jagdish Yadav vs Sakuli Bai on 30 November, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 30th OF NOVEMBER, 2023
MISC. PETITION No. 2187 of 2023
BETWEEN:-
1. JAGDISH S/O BHUPAT YADAV, AGED
ABOUT 57 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE PANYARA
KHERA TAHSIL JATARA DISTRICT
TIKAMGARH (MADHYA PRADESH)
2. SMT. AVADHRANI W/O JAGDISH YADAV,
AGED ABOUT 57 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE PANYARA
KHERA TAHSIL JATARA DISTRICT
TIKAMGARH (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI BHANU PRATAP YADAV - ADVOCATE)
AND
1. SAKULI BAI W/O HALKOLE AHIRWAR,
AGED ABOUT 63 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILALGE PANYARA
KHERA TAHSIL JATARA DISTRICT
TIKAMGARH (MADHYA PRADESH)
2. DHANIRAM S/O HALKOLE AHIRWAR,
AGED ABOUT 47 YEARS, R/O VILLAGE
PANYARA KHERA TAHSIL JATARA
DISTRICT TIKAMGARH (MADHYA
PRADESH)
3. SMT. WALO W/O LACHHU AHIRWAR,
AGED ABOUT 38 YEARS, R/O VILLAGE
PANYARA KHERA TAHSIL JATARA
DISTRICT TIKAMGARH (MADHYA
PRADESH)
2
4. MAHENDRA S/O LACHHU AHIRWAR, AGED
ABOUT 25 YEARS, R/O VILLAGE PANYARA
KHERA TAHSIL JATARA DISTRICT
TIKAMGARH (MADHYA PRADESH)
5. DROPATI D/O LACHHU AHIRWAR, AGED
ABOUT 20 YEARS, R/O VILLAGE PANYARA
KHERA TAHSIL JATARA DISTRICT
TIKAMGARH (MADHYA PRADESH)
6. ABHITAP S/O LACHHU AHIRWAR, AGED
ABOUT 19 YEARS, R/O VILLAGE PANYARA
KHERA TAHSIL JATARA DISTRICT
TIKAMGARH (MADHYA PRADESH)
7. BHAGIRATH S/O HALKOLA AHIRWAR,
AGED ABOUT 25 YEARS, R/O VILLAGE
PANYARA KHERA TAHSIL JATARA
DISTRICT TIKAMGARH (MADHYA
PRADESH)
8. FOREST DEPARTMENT THROUGH FOREST
DIVISIONAL OFFICER, TIKAMGARH
DISTRICT TIKAMGARH (MADHYA
PRADESH)
9. STATE OF MADHYA PRADESH THROUGH
COLLECTOR TIKAMGARH DISTRICT
TIKAMGARH (MADHYA PRADESH)
.....RESPONDENTS
(SHRI K. S. BAGHEL - GOVERNMENT ADVOCATE FOR THE STATE)
This petition coming on for admission this day, the court passed
the following:
ORDER
1. This petition under Article 227 of the Constitution of India has been filed against order dated 25.11.2022 passed by First Civil Judge Junior Division, Jatara, District Tikamgarh in Execution Case No.40004/2014, by which a warrant of possession has been issued against the petitioners.
32. It is submitted by counsel for the petitioners that respondents no. 1 to 7 / plaintiff had filed a Civil Suit No.4A/05 against the petitioners as well as respondents no. 8 and 9. The said civil suit was decreed by judgment dated 19.11.2007 and apart from other directions, a decree for permanent injunction was issued in favour of respondents no. 1 to 7, thereby restraining the petitioners as well as respondents no. 8 and 9 from interfering with the possession of the plaintiffs during the pendency of appeal before Forest Department.
3. Being aggrieved by the said judgment and decree, the petitioners preferred an appeal which was registered as Civil Appeal No. 3A/08 which was dismissed by judgment and decree dated 13.7.2009 passed by the First Additional District Judge, Tikamgarh.
4. It is submitted that although there was no decree for possession, still the plaintiffs filed an application for execution of the decree and by impugned order, a warrant of possession has been issued against the petitioners. It is submitted that the fact that plaintiffs have prayed for a warrant of possession clearly shows that the plaintiffs were never in possession of the property in question and in absence of any decree for possession, the Executing Court has committed material illegality by issuing a warrant of possession.
5. Considered the submissions made by counsel for the petitioners.
6. The petitioners have filed an application for execution as Annexure-A/1. It is mentioned in the said application as under :-
4^^en;wu ds fo:) LFkk;h fu"ks/kkK tkjh dh xbZ gS fd og fMØhnkj ds fookfnr Hkwfe ds dCts esa ou foHkkx esa dh xbZ vihyksa ds yafcr jgus rd dksbZ n[ky u djsaA fMØh/kkj us ou foHkkx esa vihy is'k dh gS] tks vHkh yafcr gSA fdUrq en;wu }kjk fMØh/kkj ls fookfnr Hkwfe dk dCtk Nhu fy;k x;k gSA ftlls ;g izdj.k is'k gSA**
7. Thus, it is clear that the application for execution of decree was filed on the ground that during the currency of the decree of permanent injunction, the petitioners have dispossessed the plaintiffs.
8. Now, the only question for consideration is as to whether the Executing Court can direct the parties to maintain the status quo ante or not?.
9. Order 21 Rule 32 of CPC 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 5 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 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.
6(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."
10. From plain reading of sub rule (5) it is clear that the Executing Court can direct for maintaining the status quo ante. By an order passed by a Coordinate Bench of this Court in the case of Sudheer Kumar and another Vs. Balram and others decided on 8.8.2023 in Civil Revision No.501/2021 (Indore Bench), in which it has been held as under :-
8. In case the judgment-debtors violate the injunction decree and forcibly take possession, whether the remedy of the 7 decree holders would be to file application under Order 21 Rule 32 of the CPC has been emphatically settled by this Court in the case of Toram Singh vs. Imrat Singh and other, 2012 (3) M.P.L.J, 385 in which it has been held in paragraph No.12 to 16 as under:
"12. A bare perusal of the recommendation shows that the intention was to adopt a wider view to cover prohibitory as well as mandatory injunctions. Interestingly, this recommendation was made by Law Commission even contrary to the views taken by various High Courts before such recommendation. It was felt necessary to include that Explanation in the interest of justice so that decree-holder should not be driven to a separate suit for getting relief in the nature of enforcement of a decree which will ultimately save his time, labour and money. Once the said recommendation is translated in reality by including it in CPC by way of Explanation, the basic question is whether petitioner can succeed on the strength of existing provision, i.e., Order 21 Rule 32 (1) (5), read with Explanation. In the opinion of this Court, the Executing 8 Court has power and jurisdiction to pass any order to see that the decree is enforced and implemented and it is obeyed by the judgment debtor. Even a decree of a permanent prohibitory injunction needs to be enforced as per the said Explanation. If the judgment debtor had gained possession on the decree-holder's property by violating decree, said judgment debtor needs to be expelled by the Executive Court by exercising powers under Order 21 Rule 32 or by exercising inherent powers under Section 151 of CPC.
13. In my considered opinion, the Court below has given specific finding regarding allotment of land in favour of the petitioner which had not been cancelled, coupled with the finding that the petitioner is in possession. On the strength of these findings, the permanent injunction was granted with further direction to not to disturb the petitioner from the possession. If contrary to aforesaid judgment and decree, judgment debtor had disturbed and gained possession, it amounts to defeating the decree passed by the Court below. Thus, it 9 has to be held that the judgment debtor forcibly dispossessed the plaintiff in violation of order or injunction and took possession of the property. The Executing Court has ample jurisdiction to prevent the decree being flouted and to do justice to the plaintiff by putting back the plaintiff in possession of the property. This Court finds support from the following judgments:--
(i) Ram Charan Sikarwar Vs. Smt. Jogamaya Casu, AIR 1978 Cal 193. (ii) Hari Nandan Agrawal and another Vs. S.N. Pandita, AIR 1975 All 48. (iii) Magna Vs. Rustam, AIR 1963 Raj. 3. (iv) Surjit Pal Vs. Prabir Kumar Sun, AIR 1986 Cal 220. (v) Delhi Development Authority Vs. Kipper Construction Co. (P) Ltd., (1996) 4 SCC 622 = AIR 1996 SC 2005. (vi) Ajayakumar Vs. Damayanthi (2004) 2 Ker Lt 48. (vii) Century Flour Mills Ltd. Vs. S. Suppiah, AIR 1975 Mad. 270 (FB). (viii) Parukutty Amma Vs. Thankamma Amma, (1988) 1 Ker LT 883. (ix) State of Orissa Vs. Sudhansu Sekhar Misra, AIR 1968 SC 647.
(x) Thukalan Poulo Avira Vs. Mar Rasselios Gheevarghese, AIR 1954 TravCo. 117. (xi) 10 Krishna Vs. Joseph Desouza, 1985 Ker LtT 1010 = AIR 1986 Ker 63. (xii) Mohammad Vs.. Mohammed Haji, 1986 Ker LT 134.
(xiii) Manohar Lal Chopra Vs. Raj Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527.
(xiv) Hamsa Vs. George, (1995) 2 Ker LT 326 = (1995) AIHC 7 6153). (xv) Mohd.
Idris Vs. Rustam Jehangir Bahuji, (1984) 4 SCC 216 = AIR 1984 SC 1826. (xvi) Thazhapattathillath Krishnan Namboodiri and others Vs. Thazhapattathillath Damodaran Namboodiri (Died) by LR. and etc., AIR 2005 Ker 328.
14. In AIR 1975 Madras 270 (FB), the Full Bench of the High Court held that Order 39 of CPC should not be considered as placing any limit on the scope of inherent power under Section 151, which are wide and not subject to any limitation. Whenever there is any violation of an order or injunction against party, or something has been done in disobedience, it will be the duty of the Court to put the clock back to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power of the Court will not only be available in such cases, but it is 11 bound to be exercised in that manner in the interest of justice. The same view was taken in Surjit Pal Vs. Prabir Kumar Sun, AIR 1986 Calcutta 220 and Hari Nandan Agrawal and another Vs. S.N. Pandita, AIR 1975 Allahabad 482.
15. I will be failing in my duty, if I do not mention that there were conflicting views expressed in various decisions of various High Courts regarding applicability of Order 21 Rule 32 in respect of decrees of prohibitory injunction. Some of the High Courts took a view that sub-rule (5) of Rule 32 of Order 21 cannot be invoked to enforce a decree of prohibitory injunction, while some Courts have taken contrary view. However, the controversy can be said to be put to rest by bringing the explanation below sub-rule (5). The statement of objects and reasons of CPC (Amendment) Act, 2002, makes the position clear that the Explanation to Rule 32 was added on the basis of the report of Law Commission. Thus, the intention of the Parliament and legal mandate is to implement the prohibitory injunctions in execution proceedings.
1216. On the basis of principles of law laid down by various High Courts, there is no doubt that the Executing Court is not justified in closing the matter about delivery of possession on a hyper technical ground that decree for prohibitory injunction cannot be enforced in the manner prayed by the decree holder. The decision is bad in law and if this decision is permitted to stand, it will lead to a situation of lawlessness and the decree holder will be compelled to file another suit for possession. This is not the intention of Order 21 Rule 32 (5) and the Explanation. The duty of the Court is to see that the inherent powers are exercised when needs to be exercised, otherwise the litigant will loose faith in Courts and they may resort to other illegal short cuts than approaching the Civil Court."
11. Thus, it is clear that when a decree for permanent injunction is violated by forcibly taking possession, the judgment debtors can be expelled by the Executing court by exercising powers under Order 21 Rule 32 (5) of CPC. Since, in the present case, the execution proceedings have been filed by the plaintiffs by complaining violation of decree for permanent injunction, this 13 Court is of the considered opinion that no mistake was committed by the Executing Court by issuing a warrant of possession against the petitioners. As no jurisdictional error was committed by the Executing Court, therefore, order dated 25.11.2022 passed by First Civil Judge Junior Division, Jatara, District Tikamgarh in Execution Case No.40004/2014 is hereby affirmed.
12. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE JP JITENDRA KUMAR Digitally signed by JITENDRA KUMAR PAROUHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64a5a, postalCode=482001, st=Madhya Pradesh, PAROUHA serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF10402B19143A D99, cn=JITENDRA KUMAR PAROUHA Date: 2023.12.01 04:22:39 -08'00'