Rajasthan High Court - Jaipur
Nagar Palika Nadbai vs Brij Lal & Ors on 19 August, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR *** O R D E R. *** S.B. CIVIL REVISION PETITION NO. 87/2005 Nagar Palika Nadbai Vs. Shri Brij Lal & ors. DATE OF ORDER : 19th August,2013 HON'BLE MR. JUSTICE J. K. RANKA. *** Mr. AK Pareek, for the petitioner Mr. DK Garg, for the respondents
1. Instant revision petition under Section 115 CPC is preferred against the order dt.13/05/2005 passed by the Civil Judge (Junior division), Nadbai, District Bharatpur in Civil Execution No.13/2003 whereby the execution petition filed by the decree holder was allowed and further an order of attachment of property worth Rs.50,000/- was passed.
2. Brief facts emerging from the record are that a suit for permanent injunction was filed by the decree holder-respondent against Nagar Palika, Nadbai-the judgment debtor which was decreed vide judgment and decree dt.10/08/1977 and such judgment and decree attained finality since it was not further assailed. By the force of the judgment and decree, the defendant, petitioner-judgment debtor herein was restrained by a decree of permanent injunction not to establish any way (Rasta) upon the property marked in red colour in the map exhibit-1. For the execution of such decree, the respondents filed an execution petition stating that on 25/02/2002 the judgment debtor in defiance of the judgment and decree demolished a shop, kotha, chabutra etc. constructed upon the property for which a restrained order was passed in spite of the service of a registered notice by the decree holder upon the judgment debtor on 01/04/2000. It was further asserted that an application dt.01/02/2002 was also submitted by the decree holder to the judgment debtor drawing their attention towards the decree passed by the Court and hence it was stated in the execution petition that as the act of demolition by the judgment debtor was intentional, conscious and motivated and in utter defiance of the judgment and decree, therefore, the decree holder claimed restoration of the position of property as it existed before 25/02/2002 and in addition claimed an amount of Rs.2,00,000/- as compensation and further to attach the property worth Rs.5,00,000/- of the judgment debtor and to commit the defaulting officers to civil prison for six months.
3. The judgment debtor refuted the allegations of the execution petition by submitting reply of the same. The main contentions raised in such reply were that the decree had become in-executable by the lapse of time., there was no decree in favour of the legal heirs of Brij Lal, that no demolition was carried out by them but a boundary wall was removed by the applicants themselves and no way (Rasta) was established by the judgment debtor. It was also asserted that PWD (Public Works Department) had given notices to the applicants to remove the encroachment which fell in the road line.
4. In support of the application for execution, the applicants examined AW1-Murari Lal, AW-2-Mahesh Chand, AW-3-Rakesh, AW-4-Mahendra Singh as their witnesses and submitted as many as 16 documents marked from Exhibit-1 to Exhibit-16.
5. The non-applicant judgment debtor-petitioner herein examined NAW-1-Dau Dayal Sharma as their witnesses and did not submit any documentary evidence.
6. The executing court, after analysis of the material available on record, concluded that the judgment debtor had intentionally violated the judgment and decree dt.10/08/1977 and hence passed an order of attachment of property worth Rs.50,000/- of the judgment debtor vide order impugned dt.13/05/2005.
7. It is this order which is assailed before this Court by way of instant revision petition.
8. The main contention of Mr.Ak Pareek, learned counsel for the petitioner is that the executing court committed a grave error in ordering attachment of property because the demolition was carried out by the District Administration as well as PWD for which the judgment debtor i.e. the Municipal Board could not be held responsible; that the applicants are not competent persons to execute the decree dt.10/08/1977 without obtaining a succession certificate in this behalf; that the executing court overlooked the vital aspect that a public notice to remove the encroachments was issued on 24/01/2002 at the behest of the District Administration to which the applicants did not reply and that the demolition was not carried upon the property effected by the decree but on the other side of the road.
9. Per-contra, Mr. DK Garg, learned counsel for the respondents, supporting the impugned order, contended that the order passed was just and proper and the executing court, after detailed analysis of both i.e. the documentary evidence and oral evidence, rightly concluded that the judgment debtors were guilty of disobedience of the decree and their action was intentional and deliberate and hence the attachment order was fully justified.
10. Heard learned counsel for the rival parties and perused the material available on record.
11. Before proceeding further, it would be appropriate and fruitful to refer Order 21 Rule 32 CPC which deals with execution of a decree for injunction. Order 21 Rule 32 CPC provides as under:-
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 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, and 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.
12. A bare glance at the above provision demonstrates that an attachment order under this provision is made to ensure that the judgment debtor obeys the decree and upon his failure to obey and the attachment order remaining in force for six months, such attached property may be sold and out of the proceeds, the court may award to the decree holder such compensation as it thinks fit. In the instant case, the respondents had prayed for multiple reliefs in their execution petition. They prayed that position which existed before 25/02/2002 be restored and shop, kotha, chabutra etc. be constructed at the cost of the judgment debtor; that the responsible persons be sent to civil jail, that the property attached be sold and they be compensated to the extent of Rs.2,00,000/-. The executing court vide its order dt.13/05/2005 only passed an order of attachment of the property worth Rs.50,000/- and the order is silent with respect to the other reliefs as claimed in the execution petition.
13. Besides, from a bare perusal of the order it is revealed that the executing court in view of the factual controversy involved in the petition, deemed it appropriate to allow both the parties to lead oral as well as documentary evidence to substantiate their respective claim akin to a suit. This procedure adopted by the executing court cannot be faulted with but to resolve the factual controversy on better footing, it would have been appropriate for the trial court to frame specific points with regard to the controversy involved and then pass an order distinctively on each such point of controversy leaving nothing to realm of ambiguity. Framing of issues is not mandatory in deciding an execution petition but where complete factual controversies are involved, it is always appropriate in the fitness of things to frame all points of controversy and pass an order distinctively on each such point framed. Adopting such a procedure confirms with the principles of natural justice and fair play, besides putting the rival parties to notice as to what case they have to meet, it further prevents surprise and attention of stand at the final stage. This Court is convinced that the instant matter involved complex factual controversies which need to be resolved by framing distinct point of controversy. Whether the demolition was carried out by the District Administration (PWD) or at the behest of Nagar Palika; whether the property effected by the decree dt.10/08/1977 was the same upon which the demolitions were done; whether the applicants were entitled to whole relief as claimed are the main controversies which emanates from the execution petition and the reply thereto. This Court is of the opinion that passing of an order in a wholesome manner without proper framing of the points of controversy by the executing court was not appropriate and the same cannot be sustained.
14. Hence, the impugned order is quashed and set aside and the matter is remanded back to the executing court for fresh decision after framing specific and distinct points of controversy as indicated herein before and then pass a detailed order distinctively on each point. It is further directed that after framing of such points, the rival parties shall fully be entitled to lead evidence in support of their respective claims and the executing court will pass an order after appreciation of such evidence in accordance with law. It is clarified that this Court has not expressed any opinion as to the conclusions drawn by the executing court in its order dt.13/05/2005. The trial court is free to decide the matter in accordance with law without being influenced by any observation made herein above. Since the matter pertains to the year 2005, therefore, this Court deems it appropriate to direct the executing court to decide the matter afresh in accordance with law in the manner indicated herein above, within a period of four months from the date of receipt of certified copy of this order.
15. With the above observations, the revision petition stands disposed of. [J. K. RANKA], J.
Raghu/p.7/87-Civil Revision-2005-Final em.doc Certificate:All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed.
/Raghu, PA.