Case: Sheela Jerald and Ors Vs. Pushpadasan

1. Leave granted. This appeal is directed against the judgment and final order passed by the High Court of Kerala at Ernakulam in O.P. (C) No. 2230/2015, dated 17/02/2017 whereby the High Court while disposing of the original petition dismissed the execution petition by setting aside the order of II Additional Munsiff, Thiruvananthapuram allowing the execution of order dated 28/07/2011. 2. The High Court has refused to entertain an execution petition filed by the Appellants for enforcing the order of interim injunction granted to them restraining the purchaser from disturbing the peaceful possession of the premises and further directing him to vacate the premises in question. 3. The sole ground on which the High Court has refused to permit execution of the order is that the order sought to be enforced by execution is an interim order. This finding of the High Court is obviously untenable in view of Section 36, Code of Civil Procedure which reads as under: 36. Application to orders. The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order.) 4. In M.V.S. Manikyala Rao v. M. Narasimhaswami and Ors. 1966 KHC 453 : AIR 1966 SC 470 : 1966 (1) SCR 628 : 1966 (1) MLJ (SC) 29 this Court rejected the contention that Order XXI Rule 35(2) did not apply to the case in hand because the order in question was only an order for delivery of joint possession and not a decree. The Court observed that this contention cannot be accepted because Under Section 36 of the Code the provisions relating to the execution of decrees are applicable to execution of orders. We find that there is no material difference between the order that fell for consideration in Manikayala Raos case (supra) and an order such as an order granting an interim injunction. 5. Learned Counsel for the Respondent submitted that an interim order cannot be executed under the provisions of the Code of Civil Procedure because Order 39 Rule 2(a) provides for consequence of disobedience of an injunction. It is not possible to hold that a provision which provides for a consequence of disobedience of an injunction has no relevance to whether an order passed under the Code of Civil Procedure validly by the competent Court can be executed or not. 6. Indeed an order passed validly by a competent Court must be capable of execution if it has to have any meaning for the parties in litigation. Incidentally, we are informed that the order sought to be executed by the Appellants was challenged and had been upheld by the High Court itself.

Decision:
1[ds]3. The sole ground on which the High Court has refused to permit execution of the order is that the order sought to be enforced by execution is an interim order. This finding of the High Court is obviously untenable in view of Section 36, Code of Civil Procedure which reads as under:36. Application to orders. The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order.). In M.V.S. Manikyala Rao v. M. Narasimhaswami and Ors. 1966 KHC 453 : AIR 1966 SC 470   : 1966 (1) SCR 628   : 1966 (1) MLJ (SC) 29   this Court rejected the contention that Order XXI Rule 35(2) did not apply to the case in hand because the order in question was only an order for delivery of joint possession and not a decree. The Court observed that this contention cannot be accepted because Under Section 36 of the Code the provisions relating to the execution of decrees are applicable to execution of orders. We find that there is no material difference between the order that fell for consideration in Manikayala Raos case (supra) and an order such as an order granting an interim injunction.It is not possible to hold that a provision which provides for a consequence of disobedience of an injunction has no relevance to whether an order passed under the Code of Civil Procedure validly by the competent Court can be executed or not.6. Indeed an order passed validly by a competent Court must be capable of execution if it has to have any meaning for the parties in litigation. Incidentally, we are informed that the order sought to be executed by the Appellants was challenged and had been upheld by the High Court itself.