Madhya Pradesh High Court
Toran Singh vs Imrat Singh [D] Th.Lrs. Naval Singh on 4 August, 2017
1
W.P. No.5213/2013
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
W.P. No. 5213 of 2013
Toran Singh
Vs.
Imrat Singh (dead) through L.R. Naval Singh
Whether reportable :- Yes /No
______________________________________________
For Petitioner : Shri Amit Lahoti, Advocate.
For Respondent : Shri K.B. Chaturvedi, learned
Senior counsel with Shri G.P.
Chourasia, Advocate.
ORDER
(Delivered on this Day of 4th August, 2017) With the consent of learned counsel for the parties, matter is heard finally.
2) By this petition under Article 227 of Constitution of India, the petitioner has challenged the order dated 11/07/2013 (Annexure P-1) passed in Execution Case No. 57-A/1995 by the 2nd Civil Judge, Class - I, Guna, whereby, the application filed by the petitioner under section 151 of CPC has been rejected on the ground that the decree has already been executed and the possession has been restored to the petitioner.
3) The grievance of the petitioner is that the aforesaid reasons given by the learned Executing Court is 2 W.P. No.5213/2013 contrary to law for the reasoning that if there is a decree of permanent injunction in favour of the petitioner then he is not required to file a suit and if there is threatening over the property in question, the same can be again executed by restoring the possession of the petitioner over the property in question.
4) The brief facts necessary for adjudication of this case are that the petitioner has filed a suit for declaration and permanent injunction against the respondents. The said suit was registered as case No. 57-A/1995. The court below decided the same vide judgment dated 22/04/1999. The petitioner was declared as Bhumiswami of the property in question and issued a permanent injunction in favour of the petitioner restraining the respondents from interfering in the peaceful possession. The respondents assailed the said judgment by filing an appeal before the District Judge, Guna which was registered as Appeal No. 66A/1999. The appellate court affirmed the order passed by the trial court. The respondents unsuccessfully assailed it by filing second appeal before this Court which was registered as Second Appeal No. 14/2000. The second appeal was also dismissed vide judgment dated 12/02/2007. Consequent there upon, the petitioner has filed Execution Case before the Executing Court on the ground that the defendants have taken possession of the property in question. The application for recovery of the possession was filed by the petitioner on 19/05/2007. The learned Executing Court vide order dated 12/07/2007 3 W.P. No.5213/2013 rejected the application on the ground that there is no decree for recovery of the possession and, therefore, the decree has also been executed. The said order was challenged in W.P. No. 4322/2007. This Court vide order dated 03/05/2012 allowed the same and held that even the decree for permanent injunction can be enforced by delivery of possession and the executing court was directed to restore the possession to the petitioner. The learned Executing Court issued a possession warrant against the respondents and the possession was restored to the petitioner on 06/07/2013. The petitioner was enjoying the peaceful possession, but again the respondents in July, 2013 have started threatening the petitioner and tried to dispossess him from the suit property. The police complaint to this effect was lodged by the petitioner. Thereafter, an application under section 151 of CPC was filed by the petitioner mentioning the aforesaid facts with prayer to execute the decree. The learned trial court has rejected the aforesaid application vide order dated 11/07/2013 on the ground that in pursuance to the order passed by this court, the possession has been delivered and now nothing remains to be adjudicated upon. In this factual backdrop, the petitioner has approached this Court in the present petition challenging the order dated 11/07/2013.
5) Shri Amit Lahoti, learned counsel for the petitioner by placing reliance on various provisions of Code of Civil Procedure (herein after referred to as 'CPC') 4 W.P. No.5213/2013 and judgments of various courts, submitted that the order passed by the Executing court is bad in law and is perverse in nature. He has relied on the provisions of Order 21 Rule 32 of CPC which is reproduced herein below for ready reference and convenience.
"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 wilfully failed to obey it, the decree may be enforced (in the case of a 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 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 is 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 for (six months) if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the 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 5 W.P. No.5213/2013 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.
(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, an 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."
6) Learned counsel for the petitioner further contends that since there is a threat to the petitioner of dispossession from the suit property, the learned Executing Court was wrong in coming to the conclusion that the decree has already been executed and the possession has been restored to the petitioner and now nothing is left to be considered further. Learned court below ought to have initiated action against the respondents and punished them for alleged non- compliance. He further contends that fresh suit is not required to be filed, if there is a threat of dispossession over the suit property, the same can again be executed by restraining the respondents from interfering into the possession of the petitioner. As such, the petition deserves to be allowed.
7) On the contrary, Shri K.B. Chaturvedi, learned senior counsel with Shri G.P. Chourasia, learned counsel 6 W.P. No.5213/2013 for the respondents contended that the order passed by the Executing Court is in accordance with law. Mere apprehension of dispossession cannot be a ground for entertaining the application.
8) Earlier on the interference of this Court in W.P No. 4322/2007, this Court had directed the Executing Court to execute the decree and in consequence thereof, the petitioner was put back in possession. Thereafter and even today the petitioner is enjoying the possession. The question of taking action under the Rules can arise only when there is actual breach of injunction and not when there is mere attempt to violate it. In the present case, the petitioner is enjoying the peaceful possession, as such, this Court is not required to invoke the jurisdiction under Article 227 of the Constitution of India. The petition is liable to be dismissed.
9) In AIR 2009 Kerala 189, Rev. FR Paulose vs. Shajahan & Ors., it has been held that execution of decree for perpetual injunction arises for consideration only when the decree is violated.
10) In another case reported in AIR 1959 Kerala 395, Repayi Jose vs. Chacko Lonappan and Anr., it has been held as under :-
"The question of taking action under this rule arises only when a party against whom a decree for injunction has been passed willfully fails to obey it. According to the decree holder, the judgment-debtors have not actually violated the decree but are only attempting to do so. The decree can be enforced in the manner prayed for in the execution petition only when the 7 W.P. No.5213/2013 judgment-debtors have willfully failed to obey the decree. Learned counsel for the respondent stated that his client was still in possession of the land. Courts have no power to enlarge the provisions of R.32 so as to take action even in the case of an attempt to act in contravention of the decree.
As the decree-holder has no case that the judgment-debtors have entered the land or are cultivating it, the execution petition is clearly premature and the concurrent orders allowing the same have to be set aside. In this view we do not propose to decide the question whether the judgment-debtors are entitled to cultivate the land notwithstanding the terms of the decree. Even assuming that they are not, no action can be taken under R. 32 as the decree holder has no case that the decree has been violated. This question can be decided if and when the judgment-debtors willfully fail to disobey the decree and the decree-holder applies for relief."
11) In my considered opinion, the Court below has given specific finding regarding allotment of the land in favour of the petitioner which has not been cancelled and has attained finality till second appellate stage, coupled with the finding that the petitioner is in possession in compliance of the order dated 03/05/2012 passed in W.P. No. 4322/2007. The warrant for possession was issued against the respondents and the possession of the property in question was restored to the petitioner and is still enjoying the possession. Merely on the ground of apprehension that the judgment debtor/respondents are trying to interfere over the possession of the petitioner cannot be a ground to invoke Order 21 Rule 32 of CPC.
8 W.P. No.5213/2013The learned Executing Court has not committed any jurisdictional error in rejecting the application under section 151 of CPC so as to call for interference by this Court under Article 227 of the Constitution of India.
12) In view of above, the instant petition is hereby dismissed. However, the petitioner shall be at liberty to approach the Executing Court in the event if he is actually dispossessed from the suit property.
There shall be no order as to costs.
(S.A. Dharmadhikari) JUDGE (04/08/2017) Durgekar*