Punjab-Haryana High Court
Ram Singh And Anr. vs Shiv Narain And Ors. on 14 February, 2006
Equivalent citations: (2006)144PLR254
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The petitioners, who are Judgment debtors, have filed this petition under Article 227 of the Constitution of India for setting aside the order dated 24.7.2004, passed by the Additional Civil Judge (Senior Division), Rewari, whereby they have been ordered to be detained in civil prison for a period of six months and their property has also been ordered to be attached for violation of the decree dated 11.11.1999. It has been further ordered that Receiver shall hand over possession of the land to the decree holder-respondent. Further, for implementation of the decree, it has been ordered that Superintendent of Police, Rewari shall provide necessary police help to the decree holder to ensure that decree dated 11.11.1949 is not violated by the Judgment debtors and the decree holder is allowed to remain in peaceful possession of the land.
2. In this case, a decree for permanent injunction was passed on 11.11.1999 restraining the petitioners from interfering in the peaceful possession of the respondent in respect of the land, which was allotted to him vide the partition order. The said decree was challenged in appeal and the same was upheld upto this Court. Regular Second Appeal No. 2715 of 2000 filed by the petitioners was dismissed by this Court on 15.1.2001.
3. When the petitioners violated the said decree, the respondent filed execution application under Order 21 Rule 32 C.P.C. In the said execution, the petitioners filed objections. It was pleaded by them that even after passing of the order of partition dated 29.12.1994, the possession was not changed and the petitioners were still in possession of the suit land as owners. It was further alleged that even the Rapat Roznamcha dated 8.6.1996 regarding delivery of possession of the land in question to the decree holder as per the partition order was fake and fabricated and a bogus transaction. The petitioners pleaded that they are in continuous possession of the suit land even prior to filing of suit for permanent injunction, and the decree for permanent injunction was wrongly passed restraining them from interfering in possession of the respondent over the suit land.
4. At the time of issuance of notice of motion, it was contended by counsel for the petitioner that the petitioners and the respondent are in joint possession of the property in dispute and the respondent-decree holder was never in exclusive possession of the suit property. On these lines, it has been argued by counsel for the petitioners that the petitioners have not violated the decree dated 11.11.1999 and the said decree is not executable.
5. The executing Court, after considering the evidence led by the parties on the issue as to whether the petitioners violated the decree dated 11.11.1999 has recorded the finding that the petitioners-Judgment debtors have violated the said decree with impunity. While relying on the decision of the Hon'ble Apex Court in Sunder Dass v. Ram Parkash , it was held that the executing Court cannot go behind the decree nor can it question its legality and correctness, but he executing Court can only entertain an objection that decree is nullity. Since the Judgment debtors have failed to prove that the decree dated 11.11.1999 is nullity, therefore, the plea raised by them that they were in possession of the suit land even prior to filing of the civil suit and they are still in possession of the suit land cannot be gone into and such objections raised by the petitioners are not tenable. The executing Court, after taking into consideration the various factors and the stand taken by the petitioners before it, has come to the conclusion that the Judgment debtors-petitioners are avoiding the decree dated 11.11.1999 with impunity. It has been held that they did not allow the receiver to cultivate and cut the crops over the suit land and the Court had to order providing of police help to the Receiver to do his job even in the execution application in spite of the specific decree restraining them from interfering in possession of the decree holder over the suit land. The Judgment debtors are still claiming themselves to be in possession of the suit land. In these circumstances, it was ordered that it was a fit case where a lenient view should not be taken and the property of the Judgment debtors be attached and they be also ordered to be kept in civil prison for violating the decree. Against the said order, the instant petition has been filed.
6. I have heard the arguments of learned Counsel for the parties and have gone through the impugned order.
7. Counsel for the petitioners, while referring to the various documents annexed with the petition, submits that these documents clearly show that despite the order of partition dated 29.12.1994 having been passed and despite Rapat Roznamcha dated 8.6.1996 regarding delivery of possession, physical possession of the suit land was never transferred to the decree holder. It has been submitted that the petitioners are still in continuous possession of the suit land and they were even cultivating the land prior to and after passing of the decree. Therefore, there petitioners have not violated the decree dated 11.11.1999 at any stage. Counsel for the petitioners further submits that when the Receiver has been directed to deliver possession of the suit land to the decree holder and a direction for attachment of the property of the Judgment debtors has been issued, then they cannot be ordered to be put in prison, as the object of Order 21 Rule 32 C.P.C. is to enforce the decree and not to punish the Judgment debtor for the alleged violation. In support of his contention, counsel for the petitioners has relied upon decision of this Court in Dalip Kaur v. Harbans Singh .
8. On the other hand, counsel for the respondent submits that the Revenue Court partitioned the land between the parties under the Punjab Land Revenue Act vide order dated 29.12.2004 and the said partition order was upheld upto the Financial Commissioner and this Court in the writ petition filed by the petitioners. According to the said partition order, both the parties were put into possession of the respective lands, which they received in partition, vide Rapat Roznamcha Nos. 241 and 242 dated 8.6.1996. The mutation of possession was also sanctioned. After dismissal of the writ petition against the order of partition, the petitioners filed suit for declaration and permanent injunction for setting aside the partition order dated 29.12.1994 and the mutation sanctioned on the basis of the said partition as well as the Rapat Roznamcha No. 242. The respondent also filed a suit for permanent injunction restraining the petitioners from interfering in their peaceful possession over the land which was allotted to them in partition. Suit of the petitioners was dismissed, whereas suit of the respondent was decreed. Counsel for the respondent further submits that despite the fact that the decree dated 11.11.1999 attained finality and was upheld upto this Court, the petitioners asserted before the executing Court and even before this Court that they are in possession of the suit land. This fact itself shows that they are violating the decree dated 11.11.1999. Counsel for the respondent submits that it has been proved that the petitioners have violated the order passed by the executing Court. They had forcibly harvested the crop and did not allow the Receiver to take possession of the land, for which even the police help was to be provided by the executing Court. Counsel for the respondent submits that these facts clearly indicate that in stead of obeying the decree, the petitioners have deliberately and intentionally violated the same and are still violating the decree, therefore, the trial Court has rightly passed the impugned order, while ordering attachment of the property of the petitioners as well as putting them in civil prison. Counsel further submits that under Order 21 Rule 32 C.P.C., the executing Court can order for the attachment as well as civil prison of the Judgment debtor.
9. After hearing the arguments of learned Counsel for the parties and going through the impugned orders as well as the other documents annexed with the petition, I do not find any ground to interfere in the impugned order passed by the executing Court in exercise of the superintending jurisdiction of this Court under Article 227 of the Constitution of India. The factual position of the case has not been disputed. Undisputedly, the partition order dated 29.12.1994 was passed by the revenue Court under the provisions of the Punjab Land Revenue Act which was upheld upto this Court and the writ petition filed by the petitioners against that order was dismissed. The possession of the land allotted to the respective parties was delivered and Rapat Roznamcha was entered. Thereafter, mutation in favour of both the parties regarding their separate ownership and possession was sanctioned. After dismissal of their writ petition, challenging the order of partition, the petitioners filed the civil suit for declaration that the order of partition, sanction of mutation and delivery of possession was illegal, null and void. Their suit has also been dismissed upto this Court and the suit filed by the decree holder for permanent injunction restraining the Judgment debtors from interfering in possession of the decree holder over the land allotted to him in the partition was decreed. Both these suits were consolidated and decided by one judgment. Inspite of dismissal of their suit, the petitioners still claim that prior to the filing of the suit and even after passing of the decree in the suit, they were and are in possession of the land, which was allotted to the respondent in the partition. This fact indicates that the petitioners are not ready to obey the decree passed by the civil Court which has been upheld upto this Court. The executing Court has referred to various orders, vide which the petitioners had obstructed the taking over possession by the Receiver, for which even police help was to be provided. In these facts, the executing Court has observed that it is a case where a lenient view should not be taken. Order 21 Rule 32 C.P.C. provides that if a person, against whom a decree for injunction has been passed and who had an opportunity to obey the said decree and has willfully not obeyed it, the decree may be enforced by his detention in civil prison or by attachment of his property or by both. In the instant case, in my opinion, the executing court has rightly come to the conclusion that the petitioners have violated the decree with impunity, therefore, has rightly ordered attachment of the property of the petitioners as well as their civil prison.
10. In view of the above, I do not find any legality or infirmity in the impugned order and this petition is dismissed with costs of Rs. 10,000/-.