Karnataka High Court
President-Roshan Mosque vs Sharfunnissa on 28 August, 1986
Equivalent citations: ILR1986KAR3243, 1987(1)KARLJ40
ORDER Kulkarni, J.
1. Both the Advocates submitted that the revision itself may be finally heard on merits. Accordingly arguments on the final merits of the revision are heard and the revision is disposed of finally.
2. This is a revision by judgment-debtor-2 against the order dated 4th August, 1986, passed by the VI Additional City Civil Judge, Bangalore City, in Execution case No. 76 of 1985 allowing LA. No. 2.
3. The respondent-decree holder Smt. Sharfunnissa had filed a suit in O.S.No. 1909/83 against the present revision petitioner (defendant-2 in the suit) and another Amanulla Khan (defendant-1 in the said suit) for permanent injunction alleging that she was in possession of the property and that the defendants were interfering with her possesion of the property. The said suit was decreed exparte.
4. According to the decree holder, defendants-1 and 2 on 14-10-1985 took forcible possession of the property out of Court. Thereafter she filed the present execution for delivery of the possession of the property i.e. for restitution of the property to her.
5. It was opposed by the defendants in the executing Court.
6. The executing Court relying on State of Bihar v. Usha Devi and Anr., pertaining to the equitable principles, ordered the delivery of the possession of the property to the decree holder. Hence the revision by defendant-2.
7. The learned Counsel Shri Angadi submitted that the executing Court had already executed the decree and had put the decree holder in possession of the property. Thus, according to him, no relief could be granted to the revision petitioner in the present revision.
8. The main important question is whether in the case of a decree for permanent injunction the Court has got any jurisdiction to put a decree holder in possession of the property on the ground that the judgment debtors had forcibly thrown her out of the property out of Court.
9. Section 144 C.P.C. would come in to play if as a result of the decree passed the party has taken possession of the property and if that decree has been subsequently varied or set aside or modified. The dispossession contemplated by Section 144 C.P.C. is dispossession by executing the process of the Court. Section 144 C.P.C. does not contemplate a case where the party has taken the law into his own hands and has brought about dispossession. If the party has acted highhandedly out of Court and has taken possession, the only remedy available to the party dispossessed is to file a suit for possession. The question of restitution does not arise in such cases.
10. Order 21 Rule 32 C.P.C. clearly lays down as to how a decree for injuction can be executed. Order 21 Rule 32 C.P.C. says that where a decree for injunction is passed and where he had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by his detention in the civil prison, or by the attachment of his property, or by both. This is the only mode of execution of a decree for permanent injunction. Rule 32 does not contemplate the restitution at all. The remedy available to a party in such a case of forcible dispossession is by way of suit.
11. This Court in Sakamma v. Eregowda, 1974(2) KLJ 357 has stated as:-
"The dismissal of the plaintiff's suit for permanent injunction on the ground that he was not in possession on the date of suit, does not amount to conclusively holding that the defendant was in possession on the date of suit. Section 144 or Section 151 cannot be invoked to give positive relief to the defendant, which relief he can secure in a suit."
Similar is the principle laid down in K. Govinda Chettiar v. A. N. Muniswami Chettiar, AIR 1937 Madras 315 and Banchhanidhi Das v. Bhanu Sahuni and Ors., AIR 1974 Orissa 148.
12. In Sanampudu Krishna Reddy v. Pallam Reddy, AIR 1980 NOC 99 (Andhra Pradesh) the Andhra Pradesh High Court has stated as:-
"Civil P.C. (1908) Section 144 - Applicability - Possession of immovable property lost due to use of physical force by opposite party and not through process of Court - proper remedy is to file suit - Application under Section 144 not maintainable."
13. The Learned Counsel Shri Angadi placed reliance on Order 21 Rule 32 (5) C P.C. and also the illustration found below it. It reads as:-
"(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,"
Illustration "A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B. A, inspite 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 remove the building. The Court is of opinion that no sum realizable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution proceedings."
This illustration shows that the decree itself directed A to remove the building which he had put up on the way leading to the mansion. He did not obey the decree. The Court ordered the removal of the building at the cost of A.
14. In this case, the decree does not contemplate any such situation at all. The decree is for simple permanent injunction restraining the defendants from interfering with the plaintiff's possession of the property. Therefore Sub-rule (5) of Rule 32 of Order 31 and the said illustration will not come to the rescue of the decree holder at all in this case.
15. The learned Counsel Shri Angadi referred me to The State of Bihar v. Usha Devi and Anr., where in it is laid down as:-
"If a Court comes to the conclusion that an order passed under Order 39, Rule 1 or Rule 2 has been disobeyed and by a contravention of that order the other party in the suit has done something for its own advantage to the prejudice of the other party, it is open to the Court under inherent jurisdiction to bring back the party to a position where it originally stood as if the order passed by the Court has not been contravened."
The principle laid down by the Patna High Court runs contrary to the above decisions stated by me. The said Patna case does not appear to have considered the principles laid down by Order 21 Rule 32 C.P.C.
16. The learned Counsel Shri Angadi submitted that if the person against whom a decree for permanent injunction has been passed, takes the Jaw into his own hands and forcibly dispossesses the plaintiff, it would be highly inequitable to drive the plaintiff to another suit. The question of equity will not arise when the law on the point is quite specific. It may be that the act of the defendants is thoroughly opposed to law and their conduct deserves to be condemned. But that does not justify the Court to order restoration of the possession of the property. The law in our Country does not recognise the application of equitable principles when the law on the point is quite specific.
17. Therefore, under these circumstances, the order passed by the Court below delivering the property in the execution of the decree is bad at law. The learned Counsel Shri Angadi submitted that the Court below had already put the decree holder in possession of the property. If it is so, the act of the Court below in putting the decree holder in possession of the property, cannot be sustained in law at all.
18. Therefore, under these circumstances, the order passed by the Court below is set aside. The revision is allowed. The Court below should proceed to put back the defendants in possession of the property. The decree holder is at liberty to execute the decree for permanent injunction obtained by her already in O.S. No. 1909 of 1983. The Court while executing the decree for permanent injunction should bear in mind that the Court has been empowered to execute the decree for permanent injunction either by arrest or by attachment of the property of the judgment debtors.