Punjab-Haryana High Court
Sanju Alias Payal And Another vs Kamlesh And Another on 20 November, 2025
188
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Execution Second Appeal No. 76 of 2025 (O&M)
Date of Decision: 20.11.2025
Sanju @ Payal and another
.......... Appellants
Versus
Kamlesh and another
.......... Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Vijay Kumar Jindal, Senior Advocate, assisted by
Mr. Abhishek Shukla, Advocate
for the appellants-Objectors/Judgment Debtors
Mr. Sandeep Kumar Yadav, Advocate with
Ms. Sangeeta Yadav, Advocate
for contesting respondent No. 1-Decree Holder (Kamlesh)
****
HARKESH MANUJA, J. (ORAL)
By way of present second appeal, challenge has been laid to the orders dated 10.10.2023 & 24.10.2025 passed by the Courts below, whereby objection petition filed at the instance of appellants (legal heirs of judgment debtor) has been dismissed.
[2] Briefly stating, respondent No. 2-Sudhir filed a suit for declaration qua the property in question situated within the revenue estate of Village Bohari, Tehsil Narnaul, claiming it to be Joint Hindu Family, coparcenary and ancestral property in the hands of his father-Ishwar Singh, while alleging that the subject property was alienated by the father in favour of respondent No. 1-defendant No. 1 vide three different sale deeds, without any legal necessity. The said suit was contested at the hands of respondent No. 1-defendant No. 1 (Kamlesh). Ishwar Singh, who happened to be the father of plaintiff, was proceeded against ex parte in the suit. remained ex 1 of 13 ::: Downloaded on - 26-11-2025 21:37:27 ::: E.S.A No. 76 of 2025 (O&M) [2] parte. Besides filing her written statement, respondent No.1-defendant No. 1 also filed a counter claim for grant of permanent injunction with the prayer to restrain the plaintiff-respondent No. 2 herein (Sudhir) from interfering in her peaceful possession over the suit property. [3] Vide judgment and decree dated 09.10.2012 passed by the learned Civil Judge, Senior Division, Narnaul, the suit for declaration preferred at the instance of respondent No. 2-plainitff was dismissed, whereas the counter claim filed at the instance of respondent No. 1- defendant No. 1 was decreed, thereby restraining respondent No. 2-plaintiff as well as Ishwar Singh from interfering them in the peaceful possession of defendant No. 1-respondent No. 1 over the suit property. [4] Aggrieved thereof, respondent No. 2-plaintiff preferred first appeal, however, the same came to be dismissed vide judgment and decree dated 04.11.2015 passed by the Court of Additional District Judge, Narnaul. [5] Later, respondent No. 1-defendant No. 1 filed execution petition under Order 21 Rule 11 of the Code of Civil Procedure, 1908 (for short "CPC"). Relevant paras-3 & 4 from the execution petition are extracted hereunder:-
"3. That judgment debtor are aware of the above decision and despite this judgment debtor is disobeying the order of the court and interfering with the plaintiff's possession of the above land. Thus judgment debtor has grossly disregarded the order of the court.
4. That hence by submitting the application, it is requested that judgment debtor who even after the order of the court, is disobeying the order of the court is interfering in the above possession of the decree holder. In lieu of which compensation of Rs. 50,000/- should be given to the decree holder from judgment debtor and the land to which judgment debtor has
2 of 13 ::: Downloaded on - 26-11-2025 21:37:27 ::: E.S.A No. 76 of 2025 (O&M) [3] disobeyed the order of the court, should be duly attached and auctioned and the decree holder should be given the possession of the above land. And judgment debtor should be sent to civil jail." In response, objections came to be filed on behalf of the appellants being daughters of deceased-Ishwar Singh. The same were opposed at the instance of respondent No. 1-decree holder. [6] Learned Executing Court vide its order dated 10.10.2023 dismissed the objection petition preferred at the instance of appellants followed by issuance of warrants of possession qua the property in dispute in favour of respondent No. 1-decree holder. The final conclusion recorded by the learned Executing Court-cum-Additional Civil Judge (Senior Division), Narnaul, is extracted hereunder:-
"7. ..................
Further also, in the authority titled as "Anand Shukla and another Vs. Smt. Muti Mittal" 2012(1) LJR 800 , the Hon'ble Punjab and Haryana High Court held that Civil Procedure Code, 1908 - Order 21 Rule 32
- If judgment debtors after passing decree violate the same by dispossessing the decree holder, courts are having full power to give effective relief to decree holder by restoring the possession - By way of amendment, an explanation has been added in Order 21 Rule 32 of the CPC and that after adding the said explanation, it cannot be said that learned Executing Court is having no power to restore the possession to decree-holder under Order 21 Rule 32 of the CPC.
Hence, relying upon the above discussed authorities, I am of the considered view that the execution petition filed by the decree holder is maintainable in light of explanation to Sub-Rule 5 of Rule 32 of Order 21 of CPC.
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8. In view of above discussion, present objections are hereby dismissed being devoid of merits. Warrant of possession qua suit property be issued in favour of DH against the Jds to be executed through concerned Tehsildar. Now to come up on 26.10.2023 for report of concerned Tehsildar regarding warrant of possession of suit property."
[7] Aggrieved of the aforesaid execution, the appellants preferred first appeal, however, the same came to be dismissed vide order dated 24.10.2025 passed by the Court of Additional District Judge, Narnaul. Hence, the present Execution Second Appeal.
[8] Impugning the aforesaid orders 10.10.2023 & 24.10.2025, learned Senior Counsel representing the appellants-judgment debtors submits that in the present case, the factum of dispossession of respondent No. 1-decree holder was never proved on record and thus, there was no question of issuance of warrants of possession in her favour. Learned Senior Counsel also points out that even otherwise in an execution petition, arising of a decree for permanent injunction, the Executing Court was not empowered to execute the decree by issuance of warrants of possession in favour of the decree-holder as the execution was only to be carried out either by attachment of the property of the judgment debtor or by sending him/her to civil imprisonment. Learned Senior Counsel further points out that even no warrant of possession was to be issued by invoking the explanation added to Order 21 Rule 32 (5) of CPC. In support, learned Senior Counsel places reliance upon a decision dated 11.09.1996 rendered by the Hon'ble Andhra Pradesh High Court in Civil Revision Petition No. 2356 of 1996, titled "G. Anandam and others Versus The Warangal Municipal Corporation".
4 of 13 ::: Downloaded on - 26-11-2025 21:37:27 ::: E.S.A No. 76 of 2025 (O&M) [5] Relevant paras-11 & 12 as relied upon from the said decision are extracted hereunder:-
" 11. The next decision is a Full Bench decision Delhi High Court in Sarup Singh v. Daryodhan Singh (supra). The question involved in this case is the validity of an order passed by the trial Court directing delivery of possession of immovable property in execution of decree for mandatory injunction. It was held that :-
"A decree for injunction is normally to be executed by detaining the judgmentdebtor in civil prison or by attachment of his property or both under Order 21, Rule 32(1). Ordinarily these two coercive measures would constitute an effective remedy to compel the judgment-debtor fails to vacant the premises in spite of having suffered petition in prison there is no impediment to further exercise of punitive powers under Rule 32(1) and (3) according to law."
The next judgment relied on is Sunder Dass v. Mulakh Raj (supra). It is a case where a decree for permanent injunction restraining the judgment-debtors from interfering with the possession in relation to the plots of the decree-holder applied under Section 151 Civil Procedure Code complaining that the judgment- debtors have taken unauthorized possession of the premises. The Decree holder has contended that the Court should issue warrant for possession against the judgment-debtors under its inherent powers. It was held that powers under Section 151 and neither it could be granted under Order 21, Rule 32 or Order 21, Rule 32(5)." It was also observed that no resort can be had to the inherent powers of the Court, as the execution of decree for permanent injunction is specifically provided in Order 21, Rule 32(1).
12. It emerges from the above that the exercise of inherent power under Section 151 Civil Procedure Code to meet 5 of 13 ::: Downloaded on - 26-11-2025 21:37:27 ::: E.S.A No. 76 of 2025 (O&M) [6] the ends of justice depends on facts and circumstances of each case. The judgment of the Supreme Court as pointed out in the earlier paragraphs in Manoharlal v. Sethi Hiralal (supra) and the judgment in Ademma (supra) and Jamaluddin (supra) dealt with cases where the Courts in exercise of the inherent power under Section 151 Civil Procedure Code granted relief to meet the ends of justice and those were cases where there was no decree as such and at the interlocutory stage, the Courts exercised the, power under Section 151 Civil Procedure Code whereas the cases in Venkatasubbaiah (supra), Y Lakshmaiah (supra), Sarup Singh (supra) and Sunder Dass (supra) relate to the interpretation of Order 21, Rules 32(1) and (5) CPC. The distinction that was pointed out was that if there is violation of a decree for mandatory injunction the remedy is provided under Order 21, Rules 32(1) and (5) CPC, whereas in the case of prohibitory order prohibiting one party from interfering with the possession of another party the remedy for enforcement of prohibitory order is provided under Order 21, Rule 32(1). In a suit where injunction restraining the party for interfering with the possession of the plaintiff is decreed and the plaintiff is dispossessed high-handedly without taking any recourse to law, the remedy available to the plaintiff-Decree-holder is to seek arrest and attachment of the judgment-debtor who violated the decree for prohibitory injunction under Order 21, Rule 32(1) and he cannot seek recourse to Order 21, Rule 32(5) CPC. He cannot ask for restoration of possession as it would amount to modifying or altering the decree granted by the Court. Under those circumstances the remedy available to the petitioner is to file a fresh suit. If a decree-holder is wrongfully dispossessed in violation of the prohibitory decree his remedy is to seek arrest of the judgment debtor and attachment of his property and not to seek 6 of 13 ::: Downloaded on - 26-11-2025 21:37:27 ::: E.S.A No. 76 of 2025 (O&M) [7] restoration of possession. If he wants restoration of possession it can be obtained by filing a fresh suit as the relief sought for would alter or modify the very nature of the decree which cannot be granted under Section 151 Civil Procedure Code the Court cannot go beyond the decree and or travel beyond decree and modify or alter the decree. Therefore, the learned counsel for the respondent Municipality Mr. Gopal G. Naik is right in his submission that the trial Court should not have passed the order directing Police aid for restoration of possession."
[9] I have learned Senior Counsel representing the appellants and gone through the paper-book.
[10] A perusal of the judgment and decree dated 09.10.2012 (Annexure P-1) passed in Civil Suit No. 83 of 2005, titled "Sudhir Versus Kamlesh and another" clearly shows that a positive finding of fact has been recorded by the learned trial Court to the effect that based on the revenue records i.e. jamabandi for the year 1995-96 (Ex. P-4), respondent No. 1- defendant No. 1 was owner in possession of the suit property and that is why a decree for permanent injunction was passed in her counter claim. The operative portion of such finding recorded by the trial Court in para-23 of its judgment dated 09.10.2012 is extracted hereunder:-
"23. After hearing rival contentions of learned counsel for the parties and perusal on record, it has been observed by this Court that plaintiff has stated himself to be the member of joint Hindu family property. It has been hold by this Court that he was not the member of joint Hindu family. It looks very strange that defendant no. 1 has purchased the suit property from defendant no. 2 in the year 1992 to 1995 and she has not taken the possession of the suit property. Moreover, revenue record i.e.
7 of 13 ::: Downloaded on - 26-11-2025 21:37:27 ::: E.S.A No. 76 of 2025 (O&M) [8] jamabandi for the year 1995-96 Ex. P4, jamabandi for the year 2000-01 clearly shows that defendant no. 1 is owner in possession of the suit property. ........" [10.1] The aforesaid finding recorded in favour of respondent No. 1- defendant No. 1 qua her possession over the suit property was even upheld by the learned First Appellate Court, while passing judgment and decree dated 04.11.2015 (Annexure P-2) and thus, the said finding of possession in favour of respondent No. 1-decree holder became final inter se the parties. [11] Later, in her execution, respondent No. 1-decree holder prayed for grant of possession of the suit land. The said claim was opposed at the instance of appellants having preferred objections. Learned Executing Court vide its order dated 10.10.2023 dismissed the objection petition preferred at the instance of appellants-judgment debtor followed by issuance of warrants against them. Even, an appeal preferred against the said order by the appellants came to be dismissed by the learned Additional District Judge, Narnaul on 24.10.2025.
[12] In the given facts, no merit can be found in the submission made on behalf of the appellants that since no specific date or time of dispossession of respondent No. 1-decree holder from the suit property was pleaded or established on record, as such the warrants of possession in her favour could not have been issued. In the humble opinion of this Court, once, a concurrent finding of fact was recorded by both the Courts below in the suit that respondent No. 1-decree holder was in possession of the suit property, the same carried presumption of her possession as on the date of filing of suit till the date of its adjudication. As such, in any subsequent execution application based on dispossession at the hands of judgment 8 of 13 ::: Downloaded on - 26-11-2025 21:37:28 ::: E.S.A No. 76 of 2025 (O&M) [9] debtor, the non-mentioning of specific particulars in the shape of date or month of forcible dispossession was not of much relevance as the substratum of execution was mere dispossession of the decree-holder, which was duly established on records of the present case. Strength to the aforesaid view can be drawn from the following observations made by this Court in case of "Dilbagh Singh Versus Harpal Singh alias Harpal Singh Chela", reported as 2020 (2) ICC 312:-
"4. Having heard............ It is not even disputed; and it has been so recorded by the Executing Court as well, that the question of possession qua the suit property had been specifically is in issue before the trial Court. The issue had been decided in favour of the decree holder and the possession over the suit property had specifically been held in favour of the decree holder. The said findings were challenged by the present petitioners before the Appellate Court. However, even the Appellate Court upheld the finding of the Trial Court to the effect that the suit property was in specific possession of the plaintiff/decree holder. Accordingly, the Executing Court has to start with the said finding and with presumption that the property was in possession of the decree holder as on the date of passing of the decree. Starting with any other point or assumption, would tantamount to disputing the finding of the trial Court, which had come in the judgments/decree after a long and protracted trial, in which both the parties were at liberty to present their respective cases. So far as the Executing Court is concerned, it could not have gone beyond the decree to dispute the possession in favour of the decree holder. Therefore, the Executing Court has not committed any irregularity or illegality in accepting that as on the date of decree, the possession of the suit property was with the decree holder.
5. The petitioners/judgment debtors have not claimed either in their objections; or even before this Court; that the judgment debtors are not in possession of the suit property; as of today. Rather, it is the case of the petitioners that the petitioners/judgment debtors have throughout been in possession
9 of 13 ::: Downloaded on - 26-11-2025 21:37:28 ::: E.S.A No. 76 of 2025 (O&M) [10] of suit property and the decree holder had got a decree; based upon a factually wrong finding recorded by the Trial Court that he was in possession. I am afraid that this cannot be the scope of objection to be entertained on behalf of the judgment debtor. An execution of a decree, pre supposes the validity of the decree, whereas, the argument of learned counsel for the petitioners is indicative of disputing the validity of the decree itself. ......." [13] Moreover, no merit can be found with the submission made on behalf of the appellants-judgment debtors that warrants of possession were not to be issued in exercise of powers under explanation to Order 21 Rule 32 (5) of CPC in favour of decree-holder in a suit for permanent injunction, as this question has already been answered by this Court in case of "Kapoor Singh Versus Om Parkash", reported as 2009 (4) CivCC 586. Relevant paras-9 to 11 from the said decision are extracted hereunder:-
"9. As discussed earlier, the decree dated 22.10.1994 was in two parts. One concerning the specific performance of the contract and the other concerning restraint order with regard to the forcible dispossession. In respect of the latter part, Order 21, Rule 32 (5) Civil Procedure Code, provides that the Court may, in lieu of or in addition to all or any of the processes which are provided under Order 21, Rule 32 (1) to (4), direct that act which is required to be done which covers prohibitory as well as mandatory injunctions.
10. To my mind, the Act required to be done which is also mentioned in the explanation are prohibitory and mandatory injunction empowers the Executing Court in case of violation of the decree of permanent injunction where the respondents have forcibly taken possession in spite of the decree of injunction.
Thus, an order of mandatory injunction can be issued for restoration of possession as has been done in the present case. The Courts cannot be a party to the illegal designs
10 of 13 ::: Downloaded on - 26-11-2025 21:37:28 ::: E.S.A No. 76 of 2025 (O&M) [11] of a judgment debtor who wishes to carry on with his illegal possession.
11. The law lies in favour of the interpretation which would prevent multiplicity of the proceedings rather than the one which will generate it. The decree holder is not required to file another suit as he had already obtained a decree in his favour by spending much time and expense. Thus, the Executing Court has the jurisdiction to pass an order on the application under Order 21, Rule 32 (5) Civil Procedure Code to restore the possession of land in dispute to decree holder in case the decree of permanent injunction is violated by the judgment debtor." [14] The aforesaid view of Kapoor Singh's case (supra) was followed by this Court later in case of "Dilbagh Singh and others Versus Harpal Singh alias Harpal Singh Chela and others", 2020 (2) ICC 312. Relevant para-6 from the said decision is extracted hereunder:-
"6. Although learned counsel for the petitioners has laid much stress on the fact that to seek execution of the decree, qua the restoration of the possession in his favour, the decree holder was supposed to plead specifically as to when and in what manner he has been dispossessed. This Court finds this argument to be noted only to be rejected. The provisions of sub Rule (5) Rule 32 of Order 21 CPC do not prescribe any such condition. Rather, Order 21 Rule 32 CPC prescribes that for execution of a decree if any act is required to be done by the judgment debtor, the Executing Court can order that such an act be done by the judgment debtor; as claimed. Sub Rule (5) Rule 32 of Order 21 CPC has been interpreted by the Supreme Court in various judgments viz. "Samee Khan v. Bindu Khan, 1998(4) RCR (Civil) 125 (SC)" to mean that in an execution proceedings of a decree for injunction, if it is found that 11 of 13 ::: Downloaded on - 26-11-2025 21:37:28 ::: E.S.A No. 76 of 2025 (O&M) [12] the decree holder has been dispossessed after the date of decree, the restoration of possession can also be ordered by the Executing Court. Hence, it is no more res-integra that in execution of a decree for injunction, even restoration of possession can be ordered by the Executing Court. This view has also been taken by this court in 'Kapoor Singh v. Om Parkash, 2009(4) PLR 178'. Hence, no fault can be found, per-se, with the action of the Executing Court in issuing warrants of possession in the execution proceedings."
[15] Furthermore, the view expressed by this Court in the aforesaid two judgments was even approved by the Hon'ble Apex Court in case of "Bhudev Mallick alias Bhudeb Mallick and another Versus Ranajit Ghoshal and others" 2025 SCC OnLine SC 360. Relevant para-40 from the said decision is extracted hereunder:-
"40. The High Court of Punjab and Haryana in the case of Dilbagh Singh and Others v. Harpal Singh Alias Harpal Singh Chela and Others reported in 2020 Supreme (P&H) 944, has held as under:-
"6. Although learned counsel for the petitioners has laid much stress on the fact that to seek execution of the decree, qua the restoration of the possession in his favour, the decree holder was supposed to plead specifically as to when and in what manner he has been dispossessed. This Court finds this argument to be noted only to be rejected. The provisions of sub Rule (5) Rule 32 Order 21 CPC do not prescribe any such condition. Rather, Order 21, Rule 32 CPC prescribes that for execution of a decree if any act is required to be done by the judgment debtor, the Executing Court can order that such an act be done by the judgment debtor; as claimed. Sub Rule (5) Rule 32 Order 21 CPC has been interpreted by the Supreme Court in various judgments viz. "Samee Khan v. Bindu Khan,
12 of 13 ::: Downloaded on - 26-11-2025 21:37:28 ::: E.S.A No. 76 of 2025 (O&M) [13] 1998(4) RCR (Civil) 125 (SC)" to mean that in an execution proceedings of a decree for injunction, if it is found that the decree holder has been dispossessed after the date of decree, the restoration of possession can also be ordered by the Executing Court . Hence, it is no more res-integra that in execution of a decree for injunction, even restoration of possession can be ordered by the Executing Court. This view has also been taken by this court in 'Kapoor Singh v. Om Parkash, 2009 (4) PLR 178'. Hence, no fault can be found, per-se, with the action of the Executing Court in issuing warrants of possession in the execution proceedings.
(Emphasis supplied)"
[16] In view of the aforesaid discussion, no illegality or perversity can be found with the reasoning recorded by the Courts below. Resultantly, the present appeal being devoid of merits is hereby dismissed.
[17] Pending miscellaneous application(s), if any, shall also stand disposed off.
November 20, 2025 ( HARKESH MANUJA )
'dk kamra' JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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