Civil Revision No.1822 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1822 of 2011(O&M) Date of Decision: March 16, 2011 Anand Shukla and another .....Petitioners v. Smt.Murti Mittal .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Raj Kumar Rana, Advocate for the petitioners. ..... RAM CHAND GUPTA, J. 1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 29.5.2010, Annexure P9, and order dated 12.10.2009, Annexure P7, passed by learned Civil Judge, Junior Division, Ambala Cantt., in execution proceedings instituted by respondent-decree holder against present petitioners. 2. I have heard learned counsel for the petitioners and have gone through the whole record carefully, including the impugned orders passed by learned trial Court. 3. Facts relevant for the decision of present revision petition are that a suit for permanent injunction was filed by respondent-decree holder against the present petitioners-judgment debtors in respect of common street shown in red and marked by letters `ABCD' in the site plan, situated between House Nos.6352/10/2,3,4 and 6352/10/1 at Nicholson Road, Amabala Cantt. 4. Suit was contested by present petitioners-defendants. However, the same was decreed in favour of respondent-plaintiff vide judgment and decree dated 1.12.1999 and 2.12.1999 respectively, Annexure P4. The said judgment and decree have become final. Hence, execution application has been filed by respondent-decree holder for getting the said Civil Revision No.1822 of 2011(O&M) -2- decree executed. Petitioners filed objection petition, Annexure P6, in the execution petition, which was dismissed by learned Executing Court vide order dated 12.10.2009, Annexure P7. On 6.3.2010, respondent-decree holder filed an application under Order 21 Rule 32 and 11-A read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as `the Code') for specific performance of decree of injunction with a prayer to direct the petitioners-judgment debtors to remove encroachment by demolishing the building constructed on the property in dispute. On the said application, impugned order dated 29.5.2010 was passed, which is Annexure P9. 5. It has been contended by learned counsel for the petitioners that provision of order 21 Rule 32 and 11-A of the Code applies only to decree for mandatory injunction and not to the suit for permanent injunction and hence, it is contended that in case of decree for prohibitory injunction, remedy lies with the decree holder for filing a fresh suit for possession and hence, it is contended that in execution proceedings under Order 21 Rule 32 and 11-A read with Section 151 of the Code, warrant of possession cannot be issued. He has also placed reliance upon a Full Bench judgment of Delhi High Court in Sarup Singh v. Daryodhan Singh, AIR 1972 Delhi 142, Kariyappa v. Haladappa, AIR 1989 Karnataka 163, Dharam Pal v. Ami Lal, 1992 PLJ 413, and Mangal Singh v. Man Singh, 1994(2) PLR 734. 6. Petitioners have challenged two orders passed by learned Executing Court in this revision petition, i.e., orders dated 12.10.2009, Annexure P7, and 29.5.2010, Annexure P9. Vide order dated 12.10.2009, Annexure P7, objection petition filed by petitioners-judgment debtors was dismissed by learned Executing Court by observing as under:- “7. Now the judgment debtor has raised the objections against the execution of the said decree that they are the owner of the passage qua which they have also filed a civil suit and no decree can be executed against the true owner. The decree holder has also placed on record a copy of order dated 4.9.2007 passed in Civil Suit No.61 of 9.8.2007 titled as `Smt.Murti Mittal v. Smt.Shakuntla Shukla` vide which the Civil Revision No.1822 of 2011(O&M) -3- defendant (judgment debtor/objector herein) is restrained from creating any hindrance in raising any construction by plaintiff (decree holder herein) from opening door/window/ventilators towards common street in question. A copy of order dated 1.10.2007 passed by Sh.S.K.Shori, Additional District Judge, Ambala, in appeal against the said order dated 4.9.2007 has also been placed on record vide which the appeal of the defendant (judgment debtor herein) was dismissed against which the defendant (judgment debtor herein) preferred a revision before Hon'ble High Court, which was also dismissed vide order dated 19.10.2007. The Hon'ble High Court after taking note of the fact that there exists a common street and that the petitioner/defendant (JD herein) has already been ordered to remove the encroachment dismissed the revision petition. 8. Perusal of the file shows that there is a long drawn litigation pending between the parties with regard to the common passage/street in question. The JDs have already been ordered to remove the encroachment vide order dated 2.12.1999 and confirmed in appeal vide order dated 27.3.2002 against which no appeal/revision has been filed by the JDs. By filing the present objection petition, the JDs have again raised the question of their ownership of the said common passage, which has already been decided cannot be reopened now at this stage. The objectors have also raised the question of concealment of facts by the Decree holder in obtaining the said decree but since the decree has already been passed and confirmed in appeal, therefore, the JDs are barred from raising such objections in view of Section 47 of CPC, which explicitly prohibits the execution Court from deciding any question with regard to the judgment and decree. The execution Court cannot go behind the decree and reopen the question and decide them afresh which have already been decided. Civil Revision No.1822 of 2011(O&M) -4- 9. It has been argued by learned counsel for the judgment debtors/objectors that the objectors have already filed a suit qua the ownership of the street/passage in question and the judgment and decree cannot be executed till that suit has been decided. I have given my thoughtful consideration to the contentions of learned counsel for JD but I am unable to accept them in view of the fact that the decree has been passed against the JD and appeal has also been dismissed against the said judgment and no second appeal has been preferred by the JD. Merely filing a suit for ownership of the said common street will not stop the executing Court from execution of a decree which has been passed and confirmed in appeal and has not been stayed or set aside by the appellate Court. Reliance has been placed by learned counsel for JDs on Williams V. Lourdusamy and another, AIR 2008 Supreme Court 2212, but the said case law is not applicable to the facts and circumstances of the present case. 10. It has been argued by learned counsel for the JDs that the execution has been filed after delay and due deliberations, hence not maintainable. It is to be noted that the judgment and decree was passed against the JDs on dated 2.12.1999 and appeal of the JDs was dismissed on 27.3.2002 against which no second appeal has been preferred. The present execution petition has been filed on 1.12.2004, registered on 4.12.2004 for which the notice was issued to the JDs, which received back duly served but they did not appear despite service and they were proceeded against ex parte vide order dated 25.3.2006. It is to be noted that the objectors/JDs have not set aside the said ex parte order till today and without getting the same set aside they have no right to raise any kind of objections against the execution petition. Even otherwise the limitation period of execution of a decree is twelve years, which has not been expired from the date of passing of the decree and the execution petition is well within limitation Civil Revision No.1822 of 2011(O&M) -5- period. 11. Not only this the JDs/ Objectors have filed the present petition without setting aside the ex parte order and as per Order 21 Rule 106 of CPC, the JDs have no right to raise any objection in the execution of the said decree. Moreover from the above said discussion and from the long drawn litigation between the parties, it is crystal clear that the objection petition has been filed by the objector/ JDs without any merits and to delay the execution proceedings. From the objections raised by the JDs it appears that they are not inclined to accept the decree passed against him and to comply with the orders of the Court and deliberately resisting the execution of the decree. The objections have no merits and have been filed in order to delay the proceedings which have already been delayed so far. Therefore, the objections being devoid of merits are hereby dismissed.” 7. A careful perusal of aforementioned order passed by learned Executing Court shows that objections of petitioners-judgment debtors have been duly dealt with by learned Executing Court. It is well settled law that Executing Court cannot go beyond the decree. Hence, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in passing the impugned order dated 12.10.2009. 8. Another application, Annexure P8, was filed by respondent- decree holder under Order 21 Rules 32 and 11-A read with Section 151 of the Code for specific performance of order of injunction, upon which impugned order dated 29.5.2010 was passed by learned Executing Court, which reads as under:- “ Notice to MC not issued in which Municipal authorities were directed to remove the encroachment raised by the JD. Now fresh notice to the concerned department of Municipal Corporation Ambala to carry out necessary steps to demolish the illegal structure raised by JD be issued again for 12.6.2010. Properties of JD shall remain under attachment till then. In case of any resistance by the JD, Civil Revision No.1822 of 2011(O&M) -6- Municipal authorities Ambala shall have liberty to obtain police help from concerned police station. The SHO, concerned is also directed to provide immediate and effective police help for carrying out demolition proceedings. Report of the concerned department of the Municipal Corporation Ambala be also awaited for the date fixed.” 9. So far as argument of learned counsel for the petitioners- judgment debtors that order dated 29.5.2010 could not be passed by learned Executing Court in execution of decree for permanent injunction is concerned, in my view there is no force in the said contention as judgment debtors cannot be permitted to take law into their own hands and if judgment debtors after passing decree violate the same by dispossessing the decree holder, courts are having full power to give effective relief to decree holder by restoring the possession. 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. 10. 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 Civil Revision No.1822 of 2011(O&M) -7- 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. (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.” 11. 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 Civil Revision No.1822 of 2011(O&M) -8- 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, 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? 12. 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 Civil Revision No.1822 of 2011(O&M) -9- vi)Punjab (Murari Lal v. Nawal Kishore, AIR 1961 Pun. 547, 549 paras 5-9 (S.S.Dulat and D.K.Mahajan, JJ).” 13. 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 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 Civil Revision No.1822 of 2011(O&M) -10- 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. 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.” 14. Hence, in view of this settled legal proposition, there is no force in the argument of learned counsel for the petitioners that learned Executing Court has committed any illegality or material irregularity in passing the impugned order, Annexure P9, and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 15. Moreover, law is well settled in Surya Dev Rai v. Ram Civil Revision No.1822 of 2011(O&M) -11- 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. 16. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 16.3.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.