IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.O.C.P. No. 576 of 2009 Date of Decision : April 23, 2009 Vedpal .....Petitioner Versus Om Chander and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. N.K. Malhotra, Advocate T.P.S. MANN, J. According to the petitioner, he, along with his brother is in exclusive ownership and in possession of two plots/Ghers situated within Lal Dora (Abadi deh) of village Lakhan Majra, Tehsil Meham. He filed a civil suit against respondents Om Chander and Pirthi for a decree of permanent injunction so as to restrain them from opening a Gali forcibly and from interfering in his peaceful possession over the suit land. The suit was finally decreed, though ex parte, on March 13, 2007 by the learned trial Court and the defendants were restrained from opening the Gali forcibly and also from making interference in the peaceful possession of the plaintiff over the suit property. During the trial of the suit also, the petitioner had placed on record the site plan Ex.PW3/A prepared by the Draftsman, which showed the Gali as C.O.C.P. No. 576 of 2009 Gali Kucha Band. Inspite of the fact that the respondents were aware about the aforementioned judgment and decree passed by the civil Court, they all, in collusion with each other and in violation of the judgment/decree passed by the trial Court, forcibly opened the Gali on 18.1.2009 and, thus, interfered in the peaceful possession of the petitioner. Said act on the part of the respondents was intentional, deliberate and malafide and on that account, the respondents were liable to be punished under the provisions of the Contempt of Courts Act, 1971. As is clear from the perusal of the contents of the petition as well as from the arguments submitted by learned counsel for the petitioner, the petitioner is practically asking for execution of the decree passed by the trial Court on March 13, 2007 whereby the respondents were restrained from opening the Gali forcibly and also from interfering in the peaceful possession of the petitioner over the suit property. In such a situation, the petitioner has the remedy under Order XXI Rule 32 of the Code of Civil Procedure of executing the decree. The provision of law reads 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 -2- C.O.C.P. No. 576 of 2009 injunction, has been passed, has had an opportunity of obeying the decree and has willfully 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. -3- C.O.C.P. No. 576 of 2009 (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. A perusal of the aforementioned rule permits the decree holder to seek detention of the judgment debtor in the civil prison, or by the attachment of his property, or by both in case of disobedience of an injunction decree. In case of judgment debtor not obeying the decree and an order of attachment, as aforesaid, remains in force for six months, the decree holder may even ask for selling the attached property and out of the proceeds the Court is competent to award to the decree holder such compensation as it thinks fit. -4- C.O.C.P. No. 576 of 2009 In view of the specific provisions of order XXI Rule 32 of the Code as mentioned and explained above, this Court would hesitate to initiate contempt proceedings against the respondents in case they have violated the judgment and decree passed by the trial Court. Learned counsel for the petitioner has referred to Rama Narang v. Ramesh Narang and another, 2006(3) RCR (Crl.) 242, wherein the Hon’ble Supreme Court held that even if the decrees/orders were executable under the Code, it would not take away the Court’s jurisdiction to deal with a matter under the Contempt Act. Therefore, the petitioner is well within his right to file the present petition for initiating contempt proceedings against the respondents for violating the judgment and decree passed by the trial Court even if such a judgment/decree was executable. There is no dispute with the proposition of law as laid down by the Hon’ble Supreme Court in the case of Rama Narang (supra) that merely because an order or decree was executable, it would not take away the Court’s jurisdiction to deal with the matter under the Act. However, the Hon’ble Supreme Court itself put a rider that such a measure of contempt proceedings would not warrant punishment under Section 13 of the Act unless the contempt substantially interferes or tends substantially to interfere with the due course of justice. Therefore, with a view to initiating contempt proceedings against the respondents -5- C.O.C.P. No. 576 of 2009 for allegedly violating the judgment and decree passed by the learned trial Court, this Court would have to give a finding that the alleged act of the respondents in violating the judgment and decree of the trial Court substantially interfered or tended to substantially interfere with the due course of justice. There is no material available in the present petition that the alleged act of the respondents in opening the Gali forcibly into the suit property amounted to interference with the due course of justice. Moreover, the petitioner has not taken the Court into confidence as to why he could not apply under Order XXI Rule 32 of the Code for execution of the decree in his favour. It may also be noticed that in the case of Rama Narang (supra), the decree in question was a consent decree and there is no provision in the Code for execution of such a consent decree. In such a situation the only option left to a person alleging violation of the consent decree was to move the Court, either the Hon’ble Supreme Court or the concerned High Court for initiating contempt proceedings. It may also be noticed that the consent decree had been passed by the Hon’ble Supreme Court itself and the act of the contemner which amounted to violation of the said decree, was considered to be one which made them liable for being proceeded against under the provisions of the Contempt of Courts Act, 1971. -6- C.O.C.P. No. 576 of 2009 In view of the above, there is no merit in the present petition, which is hereby dismissed. However, the petitioner would be at liberty, if so advised, to move the concerned Court for execution of the decree of injunction. Nothing stated above shall be considered as an expression of opinion on the merits of the allegations levelled by the petitioner against the respondents regarding the alleged violation of the judgment and decree passed by the trial Court. ( T.P.S. MANN ) April 23, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO -7-