Madras High Court
Kanakamma vs Kamalan on 14 January, 2000
Equivalent citations: 2000(2)CTC240
ORDER
1. The decree holder in O.S.No.121 of 1986 on the file of the District Munsif's Court, Kuzhithurai, is the revision petitioner. She obtained a decree against the respondent herein on 25.9.1989 for declaration and injunction restraining her from entering the suit property and putting up any construction or building. She filed E.P.No.124 of 1990 under Order 21, Rule 32 of the Code of Civil Procedure alleging that the respondent in defiance of the decree against her committed trespass upon the suit property and put up a shed and a building and she had to be therefore removed from the property, the construction demolished and the respondent arrested. The respondent could not be served and therefore paper publication was effected; she was called absent; set ex parte and delivery was ordered after demolition on 7.12.1992. The delivery was to be effected by 7.1.1993. The delivery was also effected as per the direction of the Court on 18.12.1992.
2. Thereafter, the decree holder/revision petitioner filed a fresh execution petition in E.P.No.120 of 1995 alleging that the respondent, after the decree had been executed on 24.2.1995 in violation of the decree, entered the property once again and put up a second shed and the same had to be removed, if necessary, with police help. The application was filed under Order 21, Rule 32 (5) of the Code of Civil Procedure.
3. The respondent resisted the E.P. contending that the E.P. was not maintainable, that the decree in O.S.No.121 of 1986 would not bind him nor affect him in any manner, that the schedule property was not the property in his possession, that the petitioner did not have title or possession in respect of the schedule property, that she was estopped from filing a second E.P., that an area of 12 1/2 cents in S.No.3084 of Vilavankode Village was a separate and specific plot out of total area of 22 acres 33 cents in the western side of Parakkonathupattu Karaikkadu Purayidom purchased with the funds of the father of the respondent's wife at the time of his marriage from one Thanka Bai who in her turn got right over the property as successor-in-interest from one Ponnayyan, that Ponnayyan in turn purchased the property from one Dhamodharan, that the owners had not been made parties, that the respondent had not violated the decree and that therefore it was liable to be dismissed.
4. The learned District Munsif, Kuzhithurai, by his order dated 26-4-1996 dismissed the application holding that a decree for prohibitory injunction could not be executed as provided for in Order 21, Rule 32 (5), that once the decree holder had been given possession through Court and the decree had been executed, there could not be a fresh application for the same relief and if at all the petitioner had any right, it could be only by way of a separate suit. The learned District Munsif also found that the revision petitioner had not specified as to when the respondent committed trespass upon the property and there was also no documentary evidence for the same. The learned District Munsif also relied on the documents filed on the side of the respondent to come to the conclusion that the petitioner was not entitled to any relief.
5. It is as against this the present civil revision petition has been filed.
6. Miss Aanadhavalli, learned counsel for the revision petitioner, submitted that the learned District Munsif, clearly erred in overlooking that the prayer in the E.P. is in accordance with he provisions of Order 21, Rule 32(1), 32(2) or 32(5) and the revision petitioner ought not to have been driven to a separate suit. The learned Counsel submitted that the lower Court clearly overlooked that the decree holder prayed for the removal of the shed put up by the respondent in violation of the injunction decree and the same could be granted under Order 21, Rule 32 of the Code of Civil Procedure. In support of her contention, she relied on a number of decisions, which will be referred to in the course of the order.
7. The respondent, though served, has not chosen to appear and contest the civil revision petition.
8. The decree in the instant case is to the following effect:
The plaintiff is the declared owner of the property. The defendant is restrained by a prohibitory injunction from committing trespass, putting up any building or shed in the property.
9. Indeed, the revision petitioner/decree holder originally applied for executing and the property was delivery to her after removal of the superstructure put up by the respondent. It should also be noticed that the respondent remained ex parte in the suit. He remained ex parte in the earlier execution petition as well. The short question is whether the petitioner can have the relief prayed for, viz. removal of the second shed alleged to have been put but the respondent for possession.
10. In Venkatachallam Chetty v. Veerappa Pillai and others, ILR 29 Mad. 314 it has been held that, "Where a perpetual injunction has been granted, on each successive breach of it the decree can be enforced under Section 260 of the Code of Civil Procedure (Act XIV of 1882) by an application made within three years of such breach under Article 178, schedule II of the Limitation Act (Act XV of 1877)."
The Bench held that, "the decree holder is not bound to take action in respect of every petty infringement and the injunction does not by his inaction become inoperative after three years from the date of the first petty breach so as to disentitle him to take action where a serious breach is afterwards committed.
Where the terms of a decree are clear, the executing Court is bound to give effect to it and cannot read into it limitations gathered from a reference to the records of the suit."
The suit in that case related to a jungle and land to the south of it in the limits of a particular village. It was alleged in the plaint that the jungle in dispute belonged to the village and that in September, 1886 some of the defendants entered on the jungle on the presence of some right, cut leaves, felled trees and grazed their cattle and generally trespassed on the forest. The plaintiff prayed inter alia for a decree declaring that the defendants had no sort of right to the jungle and granting a permanent injunction restraining the defendants from interfering with or obstructing the plaintiff's absolute enjoyment of the same. The wrong complained of consisted in the defendants entering on the jungle cutting leaves and trees and grazing cattle in the jungle. The declaration and injunction prayed for by the plaintiff was granted. A writ of injunction followed the decree and had publicly notified to the defendants. The injunction part of it was that the defendants should not enter or offer obstruction to the plaintiff's enjoyment. They should not thereafter in any manner enter the jungle. Several of the defendants excavated channels in the disputed jungle contrary to the injunction issued in the decree. The third plaintiff/decree holder sought to execute the decree by way of arrest of those defendants/counter-petitioners. The counter-petitioners took two objections.
(1) The injunction in the suit was confined to the act of cutting leaves and trees by defendants in the disputed jungle and that the injunction order did not refer to and restrain them from enjoying their easement rights to surface drainage; and (2) Even if the injunction was taken to include the aforesaid prohibition, the remedy by execution was barred under Article 178 of the Indian Limi-tation Act, 1877.
11. As already noticed, the Bench held that the Executing Court was bound to give effect to the terms of the decree and could not read into it limitations gathered from a reference to the records of the suit. The Bench set aside the decrees of the courts below and remanded the application to the first Court to determine whether there was any infringement of the injunction granted in the decree and if so it was three years prior to the application and the first court to proceed to deal with the application in accordance with section 260 of the Code of Civil Procedure, 1882. The Bench also allowed fresh evidence to be taken.
12. The next decision is Bhagawan Das v. Sukhdei, ILR 28 A11.300. In that case one S.D. obtained a decree against B for possession of a house and an injunction restraining him from occupying the house. This was in 1899. The respondent before the High Court having stepped into the shoes of S.D. On his death, made in 1904 an application for execution alleging that the appellant had taken possession of the house and placed tenants in it and prayed that the appellant should be ordered to comply with the injunction and to arrest him and to attach his property. The Executing Court ordered execution to issue and the same was confirmed by the Appellate Court. In the appeal before the High Court it was urged that the application was time barred. Reliance was placed on Article 179, schedule II of the Limitation Act, 1877. The High Court held that.
"Article 179 of the second- schedule to the Indian Limitation Act, 1877 did not apply to an application asking the Court to enforce a decree granting an injunction to abstain from some particular act and that all that the Court had to see was whether the party bound by the decree had had an opportunity of obeying the decree or injunction and had wilfully failed to obey it."
The order of the Court below was confirmed.
13. In Sachi Prasad Mukherjee v. Amarnath Roy Chowdhuri, ILR 46 Cal. 103 : AIR 1919 Cal. 674 : 22 Cal.W.N. 851 where in a suit for declaration of title to land the plaintiff contended that the defendant by raising a wall had disobeyed a permanent injunction embodied in a decree dated September, 1895 and prayed for the demolition of the wall so far as it was above the height limited by the aforesaid injunction, it was held by a Division Bench of the Calcutta High Court that, "the remedy lay by way of execution, under Order 21, Rule 32, and the enforcement of an injunction being a question relating to the execution, discharge or satisfaction of the decree by which it was awarded, a separate suit was prohibited under Section 47 of the Civil Procedure Code, 1908."
It was interpreted that the expression "the act required to be done" in clause (5) of Order XXI Rule 32 meant what had to be done to enforce the injunction.
14. Nearer home in Ondipudur Weavers Co-operative Production and Sales Society Ltd., represented by its Special Officer and others v. Velumani and others, 1977 (II) MLJ 19 the question arose as follows:
The respondents-in that case obtained a decree for declaration of their right to use of a road called 'Colony Road' and 'for' permanent injunction restraining the appellants from interfering with the use of the road by them in that suit. The said decree was challenged in appeal by the appellants, but without success. There was a further appeal to this Court. Pending the second appeal, there was stay of the execution of the decree which was later vacated at the instance of the respondents. The respondents/decree holders thereafter filed E.P.No.443 of 1975 complaining that the appellants had disobeyed the decree for injunction and seeking the appointment of a Commissioner for removing the thorny shrubs that were grown in the pathway and for arresting the judgment debtors for the disobedience of the injunction. The executing' Court, however, did not direct arrest of the judgment debtors for disobedience of the decree for injunction, but appointed a Commissioner for removing the thorny bushes to have easy access in the pathway in respect of which they had obtained a decree. The order passed by the executing Court was challenged by the appellants by filing an appeal to the lower Appellate Court. The lower Appellate Court also having upheld the order of the executing Court, the appellants filed a civil miscellaneous appeal.
15. The learned Judge referred to a number of decisions and extracted the principle laid down by those decisions as follows:-
"While the machinery and remedy provided under Order 21, Rule 32 (1) of the Code of Civil Procedure would cover cases of both prohibitory and mandatory injunctions, sub- rule (5) of that rule will apply only to cases of mandatory injunction because it speaks of a positive act to be done by the judgment -debtor under the decree and that wherever there is no mandatory injunction directing the judgment -debtor to do a positive act, the remedy open to the decree holder is to file a fresh suit seeking mandatory injunction."
However, the learned Judge held that, "the order passed by the executing Court in that case was not contrary to the well established principles laid down by the said decisions".
The reasoning was that if, in fact, the judgment-debtors had not obstructed or prevented the clearance of the shrubs by the decree holders, they would not have approached the executing Court for the appointment of a Commissioner to clear the thorny shrubs. The learned Judge, therefore, upheld the order of the executing Court.
16. In Ram Charan Sikdar v. Jogahaya Basu and another, it was held by a learned single Judge of the Calcutta High Court in a case where after the decree for permanent injunction in respect of a pathway was passed, the judgment debtors created an obstruction by constructing pillars and an iron gate at the entrance of the path way. The decree-holder fixed the execution case whereupon the judgment debtors filed an application under Section 47 contending that the execution case for delivery of possession of the disputed pathway in excess of the claim in the absence of mandatory injunction for breaking open and removing the pucca pillars and iron gate was misconceived and the executing Court directed the decree holder to take steps for execution of his decree by removing the obstructions, it was held that, "the executing Court was well within its right to pass appropriate orders for removal of the obstruction in order to give effect to the decree passed by the Court."
In coming to that conclusion, the learned Judge relied, on the judgments of the Mysore High Court in Gundila Manjappa Shetty v. Manjakke Shedthi, AIR 1961 Mys. 268 and Ondipudur Weavers Co-operative Production Etc. Case, 1977 (II) MLJ 19 already referred to.
17. In Legal Representatives of Maga Ram and another v. Kana Ram and others, a decree for mandatory and prohibitory injunction against encroachment was granted to the plaintiff. By removal of existing encroachment the mandatory part of injunction stood satisfied. An execution application was moved for removal of subsequent encroachment. It was held by the Rajasthan High Court that, "the decree was perfectly executable under Order 21, Rule 32 of the Code of Civil Procedure."
The Rajasthan High Court observed that, "the decree for prohibitory injunction against encroachment became enforceable when the judgment-debtor made fresh encroachment on disputed land."
In fact, the High Court went to the extent of saying that in the matter of removal of encroachment there was not even any need to afford an opportunity of hearing to the judgment debtor before removal.
18. In Jai Dayal and others v. Krishkan Lal Garg and another, 1997 (2) L.W. 548 dealing with a question arising under Order 21, Rule 32 of the Code of Civil Procedure relating to perpectual injunction and mandatory injunction restraining the defendant from blocking a passage and for removal of the obstruction, the Supreme Court observed as follows:
"..... If a judgment -debtor has suffered the decree, no attempt to circumvent the perpetual injunction and mandatory injunction, can be permitted. If the decree holder makes any construction clubbing the other adjacent property, property which is part of the subject matter in the earlier suit, a party cannot and should not, by his action, be permitted to drive the decree holder for another round of adjudication of the rights in the second suit, to be started afresh. In other words, giving such a liberty will amount to encouraging persons to take the law into their own hands and drive the decree holder to another suit It can never be facilitated to circumvent the law and relegate the party for tardy process of the civil action. What is needed is an opportunity to obey the injunction. Non-compliance is a continuing disobedience entailing penal consequences. A separate fresh suit is barred under Section 47 of the Code of Civil Procedure."
19. In view of the discussion above, it is a clear that the executing Court clearly erred in driving decree holder to a separate suit.
20. In dismissing the application the lower Court has referred to a passage in Banerjee Law of Execution Third Edition page 471 and relied on Bawa Singh v. Sadhu Singh, 32 P.L.R 516 to the effect that "rights already established cannot be reagitated when infringed". However, in view of the Bench decision of this Court in Venkatachalam Chetty- Etc., ILR 29 Mad. 314 and the decision in Ondipudur Weavers Co-operative Production Etc., case, 1977 (II) MLJ 19 I am clearly of the view that the lower Court was in the wrong in driving the revision petitioner to a separate suit. For every recurring infringement as long as the application was filed within time the executing Court is duty bound to give relief to the decree holder. In this case, the infringement complained at was on 24.2.1995 and immediately the revision petitioner had moved the Court on 29.3.1995.
21. Consequently, the order of the lower Court will stand set aside and the matter remitted to the executing Court for consideration afresh in the light of observations contained in the civil revision petition. The civil revision petition is disposed of accordingly. There will be no order as to costs.
22. After I had dictated the order I came across two judgments of S.S. Subramani, J. one in Kaliammal and another v. D.C. Arunachalam and six others, judgment rendered on 2.11.1999 and the other in M.A.Raja v. S.Vedhantham Pillai and 4 others, , judgment rendered 6.12.1999.
23. In the first case, a decree was obtained by plaintiffs on 23.8.1972 declaring their right to use the cart track and the defendants and their men were restrained by means of permanent prohibition from interfering with the plaintiffs' rights in the same. Alleging that the decree had not been obeyed and the judgment -debtors were causing obstruction to the cart track execution petition was filed and one of the reliefs sought for was to appoint a Commissioner under Order 21, Rule 32 (5) read with Section 151 of the Code of Civil Procedure to remove all types of obstructions caused in the 10 feet width suit cart track and to implement the decree. The judgment- debtors objected to the reliefs sought for, for, according to them, they had not caused any obstruction, but some third party caused obstruction. It was further contended that being a decree for permanent prohibitory injunction, issue of commission for removal of obstruction could not be ordered and that such a positive direction could be granted only in a case where the decree was mandatory in character. The decree holder, if aggrieved, could only file a separate suit and the alleged obstruction -would amount to a new cause of action. The objections raised by the judgment-debtor were overruled by the executing Court and a Commissioner was appointed with a further direction that all obstructions caused within the 10 feet width of cart track was to be removed. This order of the executing Court was challenged before the learned Judge. After an exhaustive reference to several decisions the learned Judge stated in paragraph 16 as follows:
"When Court declares that plaintiff is entitled to make use of the cart-track, various rights flow from that. It recognises plaintiffs' right to make use of the same and also recognises that plaintiffs can use the same without any obstruction from any source and when defendants cause obstruction, prohibitory injunction is also given directing them not to disturb the right of plaintiffs in making use of the same. If that is the effect of the decree can it be said that plaintiffs while asking for issue of commission to remove obstruction are not entitled to apply for the same since there is no mandatory direction against defendants. I do not think that the interpretation given by learned counsel for petitioners is correct. Plaintiffs are only - making use of the cart track as they were using and are entitled to use it without any obstruction. It is that part of the decree they are enforcing against the defendants. Along with the same, there is also a decree for injunction. When both these reliefs are granted to plaintiffs, argument of learned counsel for petitioners that so long as there is no mandatory injunction against defendants, application under Rule 32 (5) is not maintainable cannot be accepted."
and the learned Judge concluded as follows:
"Asking plaintiffs to file a separate suit will be unjust and the Court also will be pleading its helplessness to plaintiffs when they come to Court with genuine grievance. To shorten the litigation and also considering the interest of justice, I feel that the impugned order is only to be confirmed and I do so."
24. The learned Judge has in the other case decided an identical question in the same manner.