1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10627 OF 2009 Shri Uttam Ramchandra Pawar……………….Petitioners And others Verssus Smt. Rangubai Shankar Pawar ………………Respondents Since deceased by her LR. Coram:A.S.Oka,J. Dated 19th March 2010 JUDGEMENT :- 1 By this writ petition under article 227 of the Constitution of India, the Petitioners who are the judgment debtors have challenged the judgment and order dated 21st November 2009 passed by the executing Court in execution of decree of perpetual injunction passed in favour of the respondent-plaintiff. 2 The respondent filed a suit for perpetual injunction and 2 declaration of ownership in respect of the suit land more particularly described in the suit. The trial Court dismissed the suit. An appeal was preferred by the respondent. The appeal was partly allowed. The appellate Court held that the respondent has failed to establish exclusive title over the suit land. However, the appellate Court held that on the date of institution of the suit the respondent -original plaintiff was in possession of the suit land. The appellate Court proceeded to pass a decree for perpetual injunction restraining the petitioners from obstructing the possession of the respondent over the suit land. An execution application was filed by the respondent seeking relief under Rule 32 of order XXI of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) of arrest and detention of the petitioners and attachment of their property. Thereafter an application was made for amendment of the execution application. The amendment was allowed. By the amendment , the respondent contended that though the decree of perpetual injunction protects her possession , the petitioners were preventing her entry into the suit land. Therefore, a prayer was added in the execution application for issuing mandatory injunction against the petitioner. A prayer was also added for a 3 relief of enforcing the mandatory injunction by appointing a Court Commissioner. The order permitting amendment was challenged by the petitioners by filing a writ petition in this Court. By order dated 6th August 2009, this Court declined to interfere . But this Court directed the executing Court to consider the objections of the petitioners to the amended players. Accordingly petitioners raised an objection contending that when the appellate Court passed a decree of perpetual injunction, there is no finding recorded that on that day the respondent was in possession. It was contended that there was no decree of mandatory injunction passed in favour of the respondent and the executing Court has no power to dispossess the petitioners while executing a decree of prohibitatory injunction. It was contended that a decree for perpetual injunction cannot be executed by dispossessing the petitioners. By the impugned order, the executing Court issued a warrant possession for dispossession of the petitioner. 3. The learned counsel appearing for the petitioner invited my attention to the judgment of the appellate Court by which a decree of perpetual injunction was passed. He submitted that a decree of perpetual injunction can be executed only in 4 accordance with Rule 32 of order XXI of the said Code. He submitted that only two modes are prescribed by the said provision. One is attachment of the property of the judgment debtor and the other is detention in civil prison. He placed reliance on a decision of this Court in the case of Murlidhar s/o Bhima Vaidya and another Vs. Nababbi Yousufkhan (1999 (4) All Maharashtra Reporter 683). Relying upon the said decision, he submitted that the decree can be executed only in accordance with Rule 32 of order XXI of the said Code and the executing Court has no power to issue possession warrant. He pointed out that in the application for amendment of the execution application, a specific stand has been taken by the respondent that after the decree of dismissal of the suit was passed, the respondent was dispossess by the petitioners. He submitted that thus when the appellate Court passed a decree for perpetual injunction, the respondents were not in possession. In execution of a decree for perpetual injunction, the executing Court cannot restore status quo ante. He submitted that relief of possession was barred by limitation on the date on which prayer for amendment of the execution application was made. He submitted that the executing Court has travelled beyond the 5 scope of the decree. He submitted that the executing Court has exceeded the jurisdiction vested in it. The learned counsel appearing for the respondent supported the impugned order. He relied upon a decision of this Court in the case of Smt Rajashree w/o Ramesh Vs. Smt Gayatridevi wd/o Gangaprasd Mishra and others (2007 (3) All Maharashtra Reporter 51). He submitted that in view of explanation to sub -rule 5 of Rule 32 of order XXI of the said Code, the executing Court has a power to pass the order which has been passed. 4. I have given careful consideration to the submissions. Rule 32 of Order XXI reads thus: “32. Decree for specific performance for restitution of conjugal rights, or for an in- junction.—(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunc- tion, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced 1[in the case of a decree for restitution of conjugal rights by the at- tachment of his property or, in the case of a de- cree for the specific performance of a contract, or for an injunction] by his detention in the civil pris- on, or by the attachment of his property, or by both. 6 (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 en- forced 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 oth- er 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 2[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 compensa- tion 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 de- cree and paid all costs of executing the same which he is bound to pay, or where, at the end of 3[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 attach- ment 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 re- covered as if they were included in the decree. 7 4[Explanation.—For the removal of doubts, it is hereby declared that the expression “the act re- quired to be done” covers prohibitory as well as mandatory injunctions.]” The explanation has been incorporated by the Code of Civil Procedure (Amendment) Act, 2002 with effect from 1st July 2002. The said amendment which is procedural in nature will apply to all pending proceedings. The amendment is to a procedural statute and therefore it will apply to all pending proceedings. In any event, the application for execution was filed after 1st July 2002. In fact the decree of perpetual injunction has been passed after the said date. Under sub -rule 5 of Rule 32 ,there is a power vesting in the executing Court to direct that an act which is required to be done under a decree of perpetual injunction may be done by the decree holder or by some other person appointed by the Court. The explanation provides that "the act required to be done" covers prohibitory as well as mandatory injunctions. If there is a decree of perpetual injunction restraining the defendant from obstructing possession of the plaintiff over suit property, the defendant is under obligation to cease and desist from interfering with possession of the plaintiff over the suit property. So long as such decree of perpetual 8 injunction is operating, the defendant cannot claim to be in possession of the suit property. Therefore, if the defendant enters the suit property, decree of injunction enjoins the defendant to remove himself from the property. The scope of explanation to sub -rule 5 of Rule 32 of order XXI of the said Code has been considered by this Court in the case of Smt Rajashree(supra). This was a case where a decree of perpetual injunction was passed against the defendant restraining the defendant from dispossessing the plaintiff and also for mandatory injunction directing the defendant to remove construction material dumped on the suit property. In execution of the said decree, a Court Commissioner was appointed. The Court Commissioner submitted a report pointing out the encroachment made by the defendant on the suit property. After hearing the parties, the executing Court found that direction for removal of encroachment could not be issued as only a prohibitory injunction was granted under the decree. Therefore the matter was carried by the decree holder to this Court. This Court considered the effect of explanation to sub- rule 5 of Rule 32 of order XXI of the said Code. After considering the law on this aspect, in paragraph 6 of the judgment , this Court held thus 9 "In case of prohibitory decrees like one obtained by present petitioner, it has been noticed that such decrees prohibited or restrained defendants or judgment debtors from undertaking something or from doing something and did not envisage any act done by them. On the contrary such decrees prohibited an "act" on his part. Thus some Courts held that when there was no particular or specific "act" directed to be performed by such judgment debtor, there was no question of permitting the decree holder to himself perform any such act on his behalf as contemplated by language of Order XXI, Rule 32(5) ." Thereafter, this Court referred to amendment made in the year 2002 by incorporating the explanation. This Court considered the case where by violating decree of prohibitory injunction a defendant takes possession of the suit property. This Court noted the argument made in such a case that such a defendant could not be evicted and the decree holder was required to file a fresh suit for eviction. This Court noted that the very purpose of filing such a suit for prohibitory or restraining or preventive relief was thus getting defeated and it was leading to multiplicity of litigation. After considering the said explanation, this Court held that "However, after amendment mentioned above said lacuna were 10 has been taken care of and executing Court is therefore now competent to undo acts or things commission of which has been prohibited by prohibitory decree. The amendment has removed the impression of helplessness of the executing Court in such matters and avoided unnecessary litigation. The remedy of filing suit to obtain preventive or resraining relief has become more meaningful. In the facts of the present case it is apparent that attention of lower Court has not been invited to this amendment at all. Conclusion is by (lower Court) that decree obtained by present petitioner /plaintiff cannot be executed is therefore unsustainable …." Therefore, in view of explanation, what is held by this Court is that the Court is not helpless in such situation and Court has power to undo the acts the commission of which has been prohibited by the prohibitory decree. In short , in view of the said explanation, now if the executing Court finds that a defendant against whom a decree of perpetual injunction has been passed has done an act contrary to the decree such as an act of dispossessing the plaintiff, the executing Court can undo the said act. 4. The learned counsel appearing for the petitioners has relied 11 upon another decision of this Court in the case of Muralidhar(supra). It must be noted here that the said decision has been delivered on 31th March 1999 which will have no application as the power of the executing Court will have to be viewed in the perspective of the amendment made with effect from 1st July 2002 by incorporating explanation to sub -rule 5. What is operating in the field is the decision in the case of Smt Rajashree(supra). 5. It is sought to be contended that on the date on which the appellate Court passed the decree of perpetual injunction, the legal representative of the plaintiff (respondent herein) was not in possession of the suit land. However, the appellate Court has passed a decree protecting the possession of the respondent and restraining the petitioner by a decree of perpetual injunction from obstructing the possession of the respondent. The said decree has attained finality. In view of the explanation to sub -rule 5 of Rule 32 of order XXI, the executing Court has power to undo the act of the petitioners of taking over possession of the suit land. It was sought to be contended that the appeal in which the decree was passed is of the year 1994 and after suit was 12 dismissed and before the appeal was preferred, the petitioner dispossessed the respondent. It is therefore contended that the application for amendment of the execution application made on 17th July 2008 was barred by limitation as the same was filed 12 years after the dispossession. It is already held that the executing Court has power to undo an act which is contrary to decree of prohibitory injunction. The question is whether the execution application was within limitation in accordance with article 136 of the Limitation Act, 1963 (hereinafter referred to as the said Act of 1963). The cause of action arose on 27th June 2003 when the decree was passed. Thus on the date on which application for amendment of the execution application was moved, the period of 12 years provided in article 136 of the said act of 1963 had not expired. Therefore, the plea of bar of limitation has no merit. 6.The petitioners have not disputed that they have taken possession of the suit land. There is no dispute that the decree of perpetual injunction passed against the petitioners has attained finality. Thus the act of the petitioners of remaining in possession of the suit land is an act contrary to the decree of 13 perpetual injunction which is operating against the petitioners. In view of the law laid down by this Court in the case of Smt Rajashree(supra) , the said act done contrary to decree of perpetual injunction can be undone by the executing Court. Hence, no fault can be found with the impugned order by which the possession warrant has been issued for dispossession of the petitioners. 7. Hence, the writ petition is rejected. On the prayer made by the learned counsel appearing for the petitioners, order dated 18th December 2009 directing both the parties to maintain status quo will continue to operate for a period of eight weeks from today. No coercive steps shall be taken in execution application for the said period of eight weeks. JUDGE