Rajasthan High Court - Jaipur
Legal Representatives Of Maga Ram And ... vs Kana Ram And Ors. on 13 August, 1993
Equivalent citations: AIR1993RAJ208
ORDER Mipal Chandra Jain, J.
1. This revision petition has been filed against the order of the learned Munsif cum Judicial Magistrate. Ladnu dated July 21, 1993 by which he has dismissed the objections of the judgment-debtor-petitioners against the execution of the decree passed against them. The facts of the case giving rise to this revision petition may be summarised thus.
2. On September 20, 1983, a decree for injunction was passed in favour of the decree-holder-non-petitioners against the judgment-debtor-petitioners directing them to remove the encroachment effected by them on the disputed open land. They were also prohibited from making encroachment upon it in future. The encroachment existing at the time of passing of the decree was removed through the execution of the decree. Thereafter, the judgment-debtor-petitioners again made encroachment upon the disputed land. The decree-holder moved third execution application for its removal. The judgment-debtors raised several objections. Firstly, the decree had already been satisfied, secondly the execution application is lime barred, thirdly, without giving an opportunity to them the executing Court had no jurisdiction to pass order for the removal of the encroachment and fourthly, no fresh encroachment has been made by them. After hearing the learned counsel for the parties, the learned executing Court dismissed all the objections by its order under challenge.
3. A perusal of the decree under execution shows that it was for mandatory as well as for prohibitory injunction. It stood satisfied so far it concerned with mandatory part of the injunction by the removal of the encroachment existing on the disputed land on the date on which it was passed. The decree in respect of prohibitory injunction was subsisting even after the disposal of first and second execution applications. The third execution application has been moved for the execution of the decree in respect of the prohibitory injunction. It is perfectly executable under Order XXI, Rule 32, C.P.C.
4. There is also no substance in the second objection relating to limitation. Article 136, Limitation Act, deals with the limitation for execution of decrees other than a decree granting mandatory injunction. The limitation is 12 years from the date the decree becomes enforceable. The decree for prohibitory injunction became enforceable when the judgment-debtors made fresh encroachment on the disputed land. The decree under execution itself was passed on September 20, 1983. As such the third execution application was well within limitation.
5. There is also no substance in the third object ion that before passing the order for the removal of the encroachment the executing Court should have given opportunity to the judgment-debtor to remove the same. Rule 32 of Order XXI of the Code of Civil Procedure deals with the execution of decree for an injunction. It does not require that such an opportunity of hearing should be given to the judgment-debtor before passing an order for the removal of encroachment. Sub-rule (5) of Rule 32 empowers the executing Court to direct the removal of encroachment without first effecting the attachment of the property of the judgment-debtors or sending them to the civil prison. It is not the case of the judgment-debtors that the provisions of Order XXI, Rule 22, C.P.C. were not complied with by the executing Court.
6. There is also no substance in the fourth objection that no encroachment has been made on the disputed land by the judgment-debtors. On the basis of the report of the Commissioner, the executing Court has held that encroachment has been made by the judgment-debtors on the disputed land despite the decree prohibiting them to do so. This is a finding of fact. It is not open for interference in the revision petition.
7. Accordingly, the revision petition is dismissed.