Madhya Pradesh High Court
Basanta vs Ghanshyam Since Dead Through Lrs ... on 8 December, 2025
1 CR-1261-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 8 th OF DECEMBER, 2025
CIVIL REVISION No. 1261 of 2025
BASANTA AND OTHERS
Versus
GHANSHYAM SINCE DEAD THROUGH LRS RAMKRISHNA AND
OTHERS
Appearance:
Shri Sourabh Singh Thakur - Advocate for the petitioners.
ORDER
The present petition has been filed, challenging the order dated 14.10.2025 passed by the Executing Court rejecting the application filed by the petitioner/judgment debtor for dismissal of execution proceedings.
2. The necessary facts for the purpose of disposal of the present petition are that, a decree for declaration and permanently injunction was passed at the instance of ancestors of the decree-holders against the ancestors of the judgment-debtors. The decree of permanently injunction was passed on 08.02.1984 and an execution application came to be filed in the year 2018, clearly mentioning in paragraph 10 of the application that the judgment-debtors have dispossessed the decree-holders and the decree- holders made prayer that the possession be delivered back from the judgment-debtors and ensure compliance of decree of specific performance.
3. It is contended by counsel for the petitioner-judgment debtor that a decree for permanent injunction cannot be executed by ordering restoration Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 10-12-2025 18:30:08 2 CR-1261-2025 of possession and such a course adopted by the executing Court is beyond the scope of Order 21 Rule 32, CPC. It is argued that the petitioners/ judgment-debtors have always been in actual possession of the suit property and they were never ousted from possession.
4. Upon considering the aforesaid argument, it is seen that there is admittedly a decree for declaration and permanent injunction against the petitioner through their ancestors. This decree dated 08-02-1984 is not shown to have been set-aside or modified in any appeal. This decree has become final between the parties. The question that whether the executing Court could have ordered for restoration of possession during course of execution of decree for permanent injunction by exercising powers under Order 21 Rule 32, CPC has been settled by this court in the case of Toram Singh vs. Imrat Singh and other, 2012 (3) M.P.L.J, 385 , wherein it has been held as under:-
"12. A bare perusal of the recommendation shows that the intention was to adopt a wider view to cover prohibitory as well as mandatory injunctions. Interestingly, this recommendation was made by Law Commission even contrary to the views taken by various High Courts before such recommendation. It was felt necessary to include that Explanation in the interest of justice so that decree-holder should not be driven to a separate suit for getting relief in the nature of enforcement of a decree which will ultimately save his time, labour and money. Once the said recommendation is translated in reality by including it in CPC by way of Explanation, the basic question is whether petitioner can succeed on the strength of existing provision, i.e., Order 21 Rule 32 (1) (5), read with Explanation. In the opinion of this Court, the Executing Court has power and jurisdiction to pass any order to see that the decree is enforced and implemented and it is obeyed by the judgment debtor. Even a decree of a permanent prohibitory injunction needs to be enforced as per the said Explanation. If the judgment debtor had gained possession on the decree-holder's property by violating decree, said judgment debtor needs to be expelled by the Executive Court by exercising powers under Order 21 Rule 32 or by exercising inherent powers under Section 151 of CPC.
13. In my considered opinion, the Court below has given specific finding Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 10-12-2025 18:30:08 3 CR-1261-2025 regarding allotment of land in favour of the petitioner which had not been cancelled, coupled with the finding that the petitioner is in possession. On the strength of these findings, the permanent injunction was granted with further direction to not to disturb the petitioner from the possession. If contrary to aforesaid judgment and decree, judgment debtor had disturbed and gained possession, it amounts to defeating the decree passed by the Court below. Thus, it has to be held that the judgment debtor forcibly dispossessed the plaintiff in violation of order or injunction and took possession of the property. The Executing Court has ample jurisdiction to prevent the decree being flouted and to do justice to the plaintiff by putting back the plaintiff in possession of the property. This Court finds support from the following judgments:--(i) Ram Charan Sikarwar Vs. Smt. Jogamaya Casu, AIR 1978 Cal 193. (ii) Hari Nandan Agrawal and another Vs. S.N. Pandita, AIR 1975 All 48. (iii) Magna Vs. Rustam, AIR 1963 Raj. 3. (iv) Surjit Pal Vs. Prabir Kumar Sun, AIR 1986 Cal 220. (v) Delhi Development Authority Vs. Kipper Construction Co. (P) Ltd., (1996) 4 SCC 622 = AIR 1996 SC 2005. (vi) Ajayakumar Vs. Damayanthi (2004) 2 Ker Lt 48. (vii) Century Flour Mills Ltd. Vs. S. Suppiah, AIR 1975 Mad. 270 (FB). (viii) Parukutty Amma Vs. Thankamma Amma, (1988) 1 Ker LT 883. (ix) State of Orissa Vs. Sudhansu Sekhar Misra, AIR 1968 SC 647. (x) Thukalan Poulo Avira Vs. Mar Rasselios Gheevarghese, AIR 1954 Trav Co. 117. (xi) Krishna Vs. Joseph Desouza, 1985 Ker LtT 1010 = AIR 1986 Ker 63. (xii) Mohammad Vs.. Mohammed Haji, 1986 Ker LT 134.
(xiii) Manohar Lal Chopra Vs. Raj Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527. (xiv) Hamsa Vs. George, (1995) 2 Ker LT 326 = (1995) AIHC6153).
(xv) Mohd. Idris Vs. Rustam Jehangir Bahuji, (1984) 4 SCC 216 = AIR 1984 SC 1826. (xvi) Thazhapattathillath Krishnan Namboodiri and others Vs. Thazhapattathillath Damodaran Namboodiri (Died) by LR. and etc., AIR 2005 Ker 328.
14. In AIR 1975 Madras 270 (FB), the Full Bench of the High Court held that Order 39 of CPC should not be considered as placing any limit on the scope of inherent power under Section 151, which are wide and not subject to any limitation. Whenever there is any violation of an order or injunction against party, or something has been done in disobedience, it will be the duty of the Court to put the clock back to set the wrong right and not allow the perpetuation of the wrong doing. The inherent power of the Court will not only be available in such cases, but it is bound to be exercised in that manner in the interest of justice. The same view was taken in Surjit Pal Vs. Prabir Kumar Sun, AIR 1986 Calcutta 220 and Hari Nandan Agrawal and another Vs. S.N. Pandita, AIR 1975 Allahabad 482.
15. I will be failing in my duty, if I do not mention that there were conflicting views expressed in various decisions of various High Courts regarding applicability of Order 21 Rule 32 in respect of decrees of prohibitory injunction. Some of the High Courts took a view that sub-rule (5) of Rule 32 of Order 21 cannot be invoked to enforce a decree of prohibitory injunction, while some Courts have taken contrary view. However, the controversy can be said to be put to rest by bringing the explanation below sub-rule (5). The statement of objects and reasons of CPC (Amendment) Act, 2002, makes the position clear that the Explanation to Rule 32 was added on the basis of the report of Law Commission. Thus, the intention of the Parliament and Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 10-12-2025 18:30:08 4 CR-1261-2025 legal mandate is to implement the prohibitory injunctions in execution proceedings.
16. On the basis of principles of law laid down by various High Courts, there is no doubt that the Executing Court is not justified in closing the matter about delivery of possession on a hyper technical ground that decree for prohibitory injunction cannot be enforced in the manner prayed by the decree holder. The decision is bad in law and if this decision is permitted to stand, it will lead to a situation of lawlessness and the decree holder will be compelled to file another suit for possession. This is not the intention of Order 21 Rule 32 (5) and the Explanation. The duty of the Court is to see that the inherent powers are exercised when needs to be exercised, otherwise the litigant will loose faith in Courts and they may resort to other illegal short cuts than approaching the Civil Court."
5. This court has already held that when decree of permanent prohibitory exemption is breached and judgment debtor gains possession of the property of the decree holder, then it is not necessary for the decree holder to file a suit for possession because it will lead to a situation of lawlessness in the society and unlimited rounds of litigation will be go on.
6. The executing court can therefore very well order the restoration of possession to decree holder once he complains that the judgment debtors have regained possession of the suit property by breaching the decree for permanent injunction. The petitioners do not dispute that they have gained the possession of the suit property and therefore the executing court was bound to have set this wrongful action made by the petitioner by breaching the decree for permanent injunction, to a correct position by ordering restoration of possession of decree holders.
7. As the petitioners have not disputed that they had gained the possession of the suit property, in the considered opinion of this court, the executing court has not erred in ordering restoration of possession of the decree holders and as evident by the order dated 14-10-2025, even Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 10-12-2025 18:30:08 5 CR-1261-2025 restoration of possession has taken place.
8. In view of the above, no indulgence is warranted in the presence petition, the same stands dismissed.
(VIVEK JAIN) JUDGE MISHRA Signature Not Verified Signed by: ARVIND KUMAR MISHRA Signing time: 10-12-2025 18:30:08