The High Court dismissed a writ petition challenging an order that issued a possession warrant. The Court held that Order 21 Rule 32 of the CPC permits the Executing Court to enforce prohibition injunctions where the judgment-debtor violates the decree.
Writ Petition dismissed; no order of possession was set aside or quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 / 10
2024:CGHC:35726
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 790 of 2024
... Petitioner
versus
1. Vijay Kumar Sinha S/o Gahur Singh Sinha Aged About 50 Years CasteKalar, R/o Ganpati Chowk Magarload, Tahsil- Magarload, District Dhamtari, Chhattisgarh (Decree Holder)
2. Chief Executive Officer Nagar Panchayat Magarload, District Dhamtari, Chhattisgarh
3. State Of Chhattisgarh Through Collector, Dhamtari, District Dhamtari, Chhattisgarh
... Respondents
For Petitioner : Mr. Ratnesh Kumar Agrawal, Advocate. For State : Mr. Rajeev Bharat, GA.
Hon'ble Shri Justice Deepak Kumar Tiwari
Order On Board
12/09/2024
2 / 10
1. This petition has been filed under Article 227 of the Constitution of India and prayed for the following reliefs:-
“10.1 That, this Hon’ble Court may kindly be pleased to call for entire records regarding present case from Courts below.
10.2 That this Hon’ble Court may kindly be pleased to set-aside the order dated 28.08.2024 passed by the learned Civil Judge Senior Division Kurud, District Dhamtari (C.G.) in Execution Case NO.3-A/2012 between “Vijay Kumar Sinha Vs. Radha Bai & Others” (Annexure-P/1), is in the interest of justice.
10.3 That this Hon’ble Court may kindly be pleased to quash the proceeding of the Execution Case No.3-A/2012 between “Vijay Kumar Sinha Vs. Radha Bai & Others” pending before the learned Civil Judge Senior Division Kurud, District Dhamtari (C.G.), is in the interest of justice.
10.3 That, any other relief/order which may deem fit and just, in the facts and circumstances of the case including award of the costs of the petition may be given.”
2. Brief facts of the case are that respondent No.1/plaintiff has filed a Civil Suit for declaration of title and permanent injunction vide judgment dated 08.02.2018 passed in Civil Suit No.3A/2012 by the Civil Judge Class-I, Kurud, District Dhamtari (C.G.), whereby, a decree has been passed in his favour by holding that he is a legal lease holder of abadi land bearing part of Khasra No.600 ad measuring area 2.50 dismil and further defendant No.1/petitioner herein was restrained from creating any disturbance and permanent injunction has also been granted. The decree-holder/plaintiff has filed an execution case by filing an application on 13.04.2018 with an averment that defendant No.1/petitioner herein, in spite of, the aforesaid decree, has entered into the Suit property and obstructed him, therefore, a prayer was made for his removal from the subject land. In the said execution, the petitioner/judgment-debtor has raised an objection and filed an application
3 / 10
under Order 21 Rule 99 to 101 of the CPC along with Order 9 Rule 7 of the CPC by stating that no decree has been passed for delivering of possession so, in a decree for declaration of title and permanent injunction, restoration of possession could not be ordered and made an averment that he is in the possession of Khasra No.1631/1 d ad measuring area 33 x 33 square feet and constructed house and shop on such land and also stated that his tenants are residing in his property, but the decree-holder is trying to dispossess him from the land which was decreed in his favour. Though in the land records, Khasra No.600 ad measuring area 1.78 hectare was recorded as abadi land, but in the said land, a pond is situated. Further, unless demarcations is made, it cannot be determined to which part of the land has been allotted in favour of the decree-holder on lease. The learned Executing Court, after hearing the said objection, observed that a permanent injunction has been issued against the petitioner/judgment-debtor and as the said judgment has attained finality, so, no other finding could be recorded by the Executing Court for the suit land and issued possession warrant against the judgment-debtor. Hence this petition.
3. Learned counsel for the petitioner submits that the Executing Court has exceeded its jurisdiction by passing the impugned order by holding that without any decree of possession, no possession warrant could be issued and placed reliance on the matter of Krishna Kumar Dubey v. Sevak Ram And Others, passed in WP(227) No.45/2014 dated 10.11.2016 by this Court and prays to allow the petition.
4. Heard learned counsel for the parties and also perused the documents annexed with the petition carefully.
4 / 10
5. When a query has been put to learned counsel for the petitioner as to whether he has filed an application under Order 21 Rule 99-101 of the CPC, which deals with the dispossession by decree-holder or purchaser and particularly where any person other than the judgment-debtor is dispossessed, how this provision would be governed, he fairly admits that no proper application has been filed, however, he would submit that as the issue raised in the application touches the route, so, the application which has been filed even in the wrong from is not material.
6. Order 21 Rule 32 of the CPC prescribes the mode of the execution for decree of an injunction and the said provision reads thus:-
“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.
(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
5 / 10
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 decreeholder 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.”
7. Upon reading the aforesaid provision, it is explicit that Order 21 Rule 32 (5) of the CPC wherein, a clause has been enabled that the decree Court for execution of an injunction decree when an injunction decree 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 and an explanation has been added by way of an amendment by Act 22 of 2002 w.e.f. 01.07.2002 that the said explanation “the act required to be done” covers prohibitory as well as mandatory injunctions.
6 / 10
8. The said issue also came up for hearing before the MP High Court in the matter of Sudheer Kumar And Another v. Balram And Others, 2023 SCC OnLine MP 2325, wherein the judgment-debtors violate the injunction decree and forcibly take possession and it has been held therein that the Executing Court has ample jurisdiction to prevent the decree being flouted and to do justice to the plaintiff by putting back the petitioner in possession of the property. The relevant para 7 & 8 read thus:-
"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
7 / 10
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.
8 / 10
Gheevarghese,AIR 1954 TravCo. 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) AIHC 6153). (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.
9 / 10
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 legal mandate is to implement the prohibitory injunctions in execution proceedings.
9. In view of the aforesaid discussion, the objection raised by the judgmentdebtor that in the decree for the prohibitory injunction, restoration of possession could not be ordered, is not tenable and considering the explanation
10 / 10
under Order 21 Rule 32 of the CPC which is applicable to enforce the terms of prohibitory injunction, the Executing Court has issued the possession warrant for the decreed land and as such, no cause of action accrues in favour of the judgment-debtor/petitioner to raise a pre-mature apprehension.
10. Accordingly, this Court is of the opinion that the executing Court has not committed any illegality or manifest perversity in the impugned order, which requires any interference by invoking thesupervisory jurisdiction under Article 227 of the Constitution of India.
11. Resultantly, this Writ Petition fails and is hereby dismissed.
Sd/-
(Deepak Kumar Tiwari) Judge
Priyanka
2 issues framed by the court
Whether the Executing Court exceeded its jurisdiction by issuing a possession warrant despite the absence of a specific decree for delivery of possession in an injunction decree.
Whether Order 21 Rule 32 of the Code of Civil Procedure applies to enforce a permanent prohibitory injunction decree.
Colour shows how this judgement treated each authority
Krishna Kumar Dubey v. Sevak Ram And OthersDistinguished¶29
Krishna Kumar Dubey v. Sevak Ram And Others
Sudheer Kumar And Another v. Balram And OthersRelied on¶42
Sudheer Kumar And Another v. Balram And Others, 2023 SCC OnLine MP 2325 · Who else cites this
To ram Singh vs. Imrat Singh and otherRelied on¶45
To ram Singh vs. Imrat Singh and other (2012) 3 M.P.L.J, 385
Delhi Development Authority Vs. Kipper Construction Co. (P) Ltd.Referred¶45
Delhi Development Authority Vs. Kipper Construction Co. (P) Ltd., (1996) 4 SCC 622 · Who else cites this
Manohar Lal Chopra Vs. Raj Bahadur Rao Raja Seth HiralalReferred¶45
Manohar Lal Chopra Vs. Raj Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 · Who else cites this
5 provisions across 2 enactments
Smt. Radha Bai W/o Nain Singh
Vijay Kumar Sinha
Chief Executive Officer Nagar Panchayat Magarload
State Of Chhattisgarh
Deepak Kumar Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
