Civil Revision No.5676 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.5676 of 2010(O&M) Date of Decision: March 8, 2011 Kundan Lal .....Petitioner v. Smt.Krishna Devi and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Parminder Singh, Advocate for the petitioner. Mr.Harkesh Manuja, Advocate for respondent no.1. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 17.8.2010, Annexure P6, passed by learned Executing Court. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Executing Court. Facts relevant for the decision of present revision petition are that a suit for permanent injunction was filed by respondent no.1-plaintiff against present petitioner-defendant and pro forma respondent no.2 restraining them from dispossessing forcibly or illegally and from interfering in the peaceful possession of the plaintiff over the property in dispute, fully described in para no.1 of the plaint. Suit was contested by present petitioner-defendant and respondent no.2. However, the same was decreed against present petitioner and against respondent -defendant no.2 and they were restrained from interfering in the possession of the plaintiff over the property in dispute. Appeal filed against the judgment was also dismissed and hence the judgment has become final. Execution petition was filed by Civil Revision No.5676 of 2010(O&M) -2- decree-holder under Order 21 Rule 11 and order 21 Rule 32 read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as `the Code'), in which objections were filed by the present judgment-debtors, which were dismissed by learned Executing Court on 8.8.2006. Warrant of possession was issued by learned Executing Court on 6.10.2007, however, the same was received with the report that there were shops on northern side of the property abutting the Kunjpura Road. Decree-holder had taken the plea that judgment-debtors constructed these shops subsequent to the decision of this case as there is no reference of the shops in the judgment and decree passed against the present judgment-debtors. Order dated 7.12.2007 was passed by learned Executing Court, which was challenged by decree-holder before this Court and this Court remanded the matter to Executing Court to decide the matter afresh after giving opportunity to the parties to lead evidence. Hence, specific issues were framed by learned Executing Court and after giving opportunity of being heard to both the parties, it was held that the shops adjoining Kunjpura road were constructed by judgment- debtors after decision of the suit and hence warrant of possession of property in dispute shown in site plan Ex.P1, as per decree dated 22.4.2003 was issued returnable for 1.9.2010 vide impugned order by observing as under:- “18. The Court can restore the possession during the execution of the decree under Order 21 Rule 32 CPC. On this point, I rely upon Inder Singh and others v. Dharma and others, 2003(3) CCC 363 (P&H). In this case warrants of possession is to be executed on the basis of boundary displayed in the decree 17x56 feet as mentioned in the para no.1 of the plaint and discussed in the decree sheet dated 22.4.2003. Therefore, issue no.1 is decided in favour of the DH and she is entitled to entire area as given in para no.1 of the plaint.” It has been contended by learned counsel for the petitioner that in a decree for permanent injunction, relief of possession cannot be granted by Executing Court as Execution Court cannot go beyond the decree and that it is beyond scope of Order 21 Rule 32 of the Code. On the point he has Civil Revision No.5676 of 2010(O&M) -3- placed reliance upon Full Bench judgment of Delhi High Court in Sarup Singh v. Daryodhan Singh, AIR 1972 Delhi 142. On the other hand, it has been contended by learned counsel for the respondent that judgment-debtors cannot be permitted to take the law into their own hands and if judgment-debtors after passing of decree violated the same by dispossessing the decree-holder, Courts are having full power to give effective relief to decree-holder by restoring the possession. It has also been contended that by way of amendment, an explanation has been added in Order 21 Rule 32 of the Code and that after adding the said explanation, it cannot be said that learned Executing Court is having no power to restore the possession to decree-holder under Order 21 Rule 32 of the Code. It is pertinent to reproduce Order 21 Rule 32 of the Code, after adding explanation by way of amendment, which reads as under:- “R.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 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 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; Civil Revision No.5676 of 2010(O&M) -4- 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. Explanation.- For the removal of doubts, it is hereby declared that the expression the act required to be done covers prohibitory as well as mandatory injunctions.” The explanation added to Sub Rule (5) of Rule 32 by amendment w.e.f. 1.7.2002 was recommended by the Law Commission in its 154th report because there was conflict of views with regard to the expression act required to be done used in sub-rule (5). It would be appropriate to refer to the observation of the Law Commission, which led to the posing of question leading to the amendment:- “8.1.1. In the Code of Civil Procedure, there is a provision for punishing disobedience to an injunction issued by the Court. Order 21, Rule 32 of the Code deals with the subject. Apart from arrest of the judgment-debtor or attachment of his property for such disobedience, Order 21 Rule 32, sub-rule (5) provides that where a decree for specific performance of a contract or for an injunction has not been obeyed, the court may in lieu of or in addition to other processes mentioned above, direct that `the act required to be done' may be done, Civil Revision No.5676 of 2010(O&M) -5- so far as practicable, by the decree-holder or some other person appointed by the Court, at the cost of the judgment- debtor. Upon the act being done, the expenses incurred in doing it may be ascertained in such manner as the Court may direct and may be recovered as if these expenses were included in the decree. 8.1.2 Question for consideration.- Now a controversy has arisen as to the meaning of the word `act required' in Order 21 Rule 32(5) of the Code. Do these words also cover the situation where a prohibitory injunction has been incorporated in the decree or are they confined to cases where the decree is a mandatory one? The Law Commission also noticed two conflicting views on the subject terming them as the wider view and the narrower view. The Law Commission noticed narrower view by referring to judgments of various High Courts, which are as under:- “i)Andhra Pradesh (Evuru Benkata Subbayya v. Srishti Veerayya, AIR 1969 A.P.92, 97, 98 para 9, 10 (DB); ii)Calcutta (Hem Chandra v. Narendra Nath, AIR 1934 Cal. 402, 403, 404) iii)Karnataka (Kariyappa v. Haidappa, AIR 1989 Kant. 163 (Bhat J.) iv)Kerala (Joseph v. Makkaru, AIR 1960 Ker. 127, 129 para 14 (M.S.Menon and B.Velu Pillai JJ) v)Madras (Nari Chinnabba Chetty v. E.Chengalroya Chetty, AIR 1950 Mad 237 and vi)Punjab (Murari Lal v. Nawal Kishore, AIR 1961 Pun. 547, 549 paras 5-9 (S.S.Dulat and D.K.Mahajan, JJ).” Law Commission also noticed the broader view taken by Hon'ble Allahabad High Court. A coordinate Bench of this Court in a recent judgment rendered in Gurchara Singh and another v. Gurudwara Shri Singh Sabha (Regd.), Sector 19-D, Chandigarh, 2004(2) PLR 330, after discussing all the previous judgments including Full Bench of the Delhi High Court and the recommendations of the Law Commission on the point and explanation, which has been added to Order 21 Rule 32 by way of Civil Revision No.5676 of 2010(O&M) -6- amendment w.e.f. 1.7.2002 observed as under:- “15. It is in view of the afore-mentioned historical perspective that the order dated 23.2.2004 passed by the Civil Judge has to be examined. The expression 'act required to be done' has been extended to prohibitory as well as mandatory injunctions. The view taken by the Full Bench of Delhi High Court has been treated as a narrower view because that was a case, in which the decree against the licensee was to quit and vacate the premises but the High Court by taking a narrower view expressed its inability to invoke Order 21 Rule 32(5). Therefore, the question posed by the Law Commission, which led to the recommendation for adopting wider view has been accepted by inserting explanation to Sub-rule (5). The decree-holder is not required to file another suit when he has already acquired a decree in his favour by spending much time and expense. The Court, therefore, would be fully competent to direct that the act required to be done may be done so far as practicable either by the decree-holder himself or by some other person appointed by the Court at the cost of judgment-debtor. In the instant execution of the decree for mandatory injunction, where the possession is sought from a licensee. The aforesaid order is consistent with the spirit of law and the explanation added as per the recommendation made by the Law Commission. The direction to vacate the premises situated in the Gurudwara Sahib where the judgment-debtor petitioners were allowed to stay being the sewadars is another form and method to direct hand over of possession. Tweedledes is Tweedledum. It can mean nothing else except the handing over of possession and, therefore, the wider view as suggested by the Law Commission has to be followed because it serves the ends of justice. The decree cannot be defeated by raising technical objections. It is well settled that technicalities of law should be construed to advance justice and not to defeat justice. With utmost defence to the ld. Civil Revision No.5676 of 2010(O&M) -7- judges, I am of the view that the ratio of the judgment of the Full Bench of Delhi High Court in Sarup Singh's case (supra) stands considerably watered down by Explanation added to Sub-rule 5 of Rule 32 of Order 21. The wider view preferred by Allahabad High Court in Harihar Pandey's case (supra) has rightly held that the decree holder cannot be compelled to file another suit for it would multiply litigation which course public policy would discourage. Courts cannot be party to the illegal designs of a Judgment debtor who wishes to carry on with his illegal possession. The ground realities propagated by Realist School of Thoughts led by Jurist like Karl Llwewllyn must dawn on the parties to litigation and substantial justice must be done. Therefore, I do not find any ground to interfere with the order passed by Civil Judge. The petition is liable to be dismissed. For the reasons recorded above, this petition fails and the same is dismissed.” Hence, in view of this settled legal proposition, there is no force in the arguments of learned counsel for the petitioner that learned Executing Court has committed any illegality in issuing warrant of possession of the property in dispute shown in application, Ex.P1. It has further been contended by learned counsel for the petitioner that shops were already in existence before passing of judgment and decree and that learned trial Court has committed illegality in coming to the conclusion that the construction of the shops were raised after passing of the judgment and decree. However, there is no force in the said statement of learned counsel for the petitioner-judgment debtor, as even as per boundaries of the property given in the plaint by the plaintiff, it has been mentioned that north side of the property abuts Kunjpura road. There is no dispute that the shops are situated in Kunjpura road. Hence, the only inference, which can be drawn is that the shops were constructed on the Kunjpura road by petitioner-judgment debtor after passing of the judgment against him. There is no mention of the shops in the judgment and decree passed by both the courts below. Learned Executing Court has given sufficient reasons for Civil Revision No.5676 of 2010(O&M) -8- coming to the conclusion that the shops were constructed by judgment- debtors after passing the judgment and decree in favour of decree-holder and against petitioner-judgment debtor. In view of the aforementioned discussion, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 8.3.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/ No.