Punjab-Haryana High Court
Narinder Singh vs Maya Devi And Ors. on 19 November, 1998
Equivalent citations: (1999)121PLR401
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Challenge in this revision petition is. to the order passed by the learned Civil Judge, Junior Division, Hoshiarpur, dated 2.8.1997.
2. The basic contention raised on behalf of the petitioner is that the provisions of Order 21 Rule 32 of the Code of Civil Procedure had no application to the facts of the present case and the learned executing court ought not have issued the warrant of possession. In order to examine the merits of this contention, reference to a few facts would be necessary.
3. A decree for permanent prohibitory injunction was passed in favour of the decree-holders restraining the judgment-debtors from interfering in the peaceful possession of the plaintiffs. The decree was passed on 9.3.1989. Appeal against the said decree was dismissed by the learned Additional District Judge, Hoshiarpur on 4.3.1994. According to the applicant-decree holders, judgment-debtors had ample opportunity to comply with the decree but' they continued to interfere in the suit property and even raised some temporary structure over the suit property during the pendency of the appeal. Thus, it was prayed that for defaulting with the compliance with the decree, the judgment debtors should be detained in civil prison and their property should be attached and other ancillary orders be passed.
4. This application was contested by the judgment debtors. They claimed possession of the suit property, since 1970 and denied that they have violated the term of the decree or raised any new temporary structure during the pendency of the appeal, as aforestated. According to them, in the report of the Local Commissioner, it is nowhere stated that the decree holders were in possession and as the judgment debtors were in possession, they ought to have obtained a decree for possession and not for permanent prohibitory injunction.
5. Learned executing court did not find any merit in the stand taken by the judgment-debtors and passed the following effective order :-
".... her application under Order 21, Rule 32 C.P.C. is allowed and warrant of possession is ordered to be issued on filing of necessary fee, returnable on 18.8.1997."
6. Learned counsel appearing for the respondents while relying upon A.I.R. 1985, S.C. 857 titled Sant Lal Jain v. Avtar Singh and Ors., (1997-1)115 P.L.R. 769, B.R. Gupta v. Vikas Kumar, contended that the petition is liable to be dismissed, while learned counsel appearing for the petitioner relied upon (1994-2)107 P.L.R. 734, Mangal Singh v. Man Singh and Ors., 1997(3) Latest Judicial Report 172 to contend that even in the facts and circumstances of the case, the impugned order could not have been passed against the judgment-debtor petitioner.
7. It may not be necessary for this court to go into the merits of the order and facts in great detail. Undisputed facts are:- that a decree for permanent prohibitory injunction was passed in favour of the respondents herein, which was not disturbed by the appellate court. The applicant filed an application under Order 21 Rule 32 C.P.C. on the plea that there was violation of the decree passed in favour of the decree-holders-respondents by the petitioner. This application was contested and the impugned order was passed by the learned ex- ecuting court.
8. Reference to the provisions of Order 21 Rule 32 C.P.C. would clearly show that the provisions of this rule deals with the situation where a decree for injunction is violated by the parties. The consequences for violating a decree include the punishment of attachment, civil prison and other necessary direction including expenses in favour of the decree-holder and against the judgment debtor. As is clear from the relief portion, reproduced above, relief of issuance of warrant of possession was granted in favour of the decree-holder. The provisions of Order 21 Rule 32(2) of C.P.C does not postulate any such situation nor empowers the court to issue the warrant of possession under the specific provisions of this rule. Learned trial Court, if at all, could pass such an order under different provisions and after being satisfied by way of evidence that the possession was taken after passing of the decree and after being satisfied of the various ingredients specified in other relevant rules of Order 21 of the C.P.C. The provisions of Rule 32 only empowers the court to pass an order of attachment, sending the judgment debtor to civil imprison and other ancillary order relating to expenses etc.
9. For the reasons aforestated, I am of the considered view that the order dated 2.8.1997 is liable to be set aside. There is an error apparent on the face of the record in so far as it relates to issuance of warrant of possession.
10. Consequently, this revision is allowed to the limited extent. Parties are directed to appear before the learned executing court. Learned executing court, after hearing the parties afresh, may pass such order as may be permissible in law and upon duly recording its satisfaction in that regard.