IGH COURT OF CE—IATTISGARH BILASPUR H WRIT PETITION No. 5800/2006 PETITIONERS Masihuddin and others Versus RESPONDENTS Khaliluddin alld another ORDER Post fort] 9-2009 Sd/- N.K. Agarwal Judge HIGH CO3RT OF CHEATTISGARH, BIL&$PUR WRIT PETITIUN Ne. 5890/2G95 PETITIONERS l. Masihuddin Sfo Niyazuddm, agad about 66 Viaars 2. Nash‘uddin, S/o Niyazuddin, ag€d about 64 years 3. Rabia ‘Begum, wife of Abdu} Wahid Khan, aged about 64 years 4. Abeda Begum, Wife of Samiuddin aged about 46 years 5. Sajida, Wife 0f Rashid Khan, aged about 38 yeays All residenis of Bagbudwa, Tahsil Munge1i, District Bilaspur {CG} Vea‘sus RESPONDENTS 1. KhaHmddin, S/o Alauddin, aged about 63 years, R/o Bagbudwa, Tahsil Mungeli, Distt. Bilaspur (CG) 2. State of Chhattisgarh, through Collector, Bilaspur (CG) Shri KA. Ansan', Sr. Advocate with Shri Ankush' Mishra, Advocate for the petitioners. Shn‘ Avmash Mishra, Advocate, for the respondent No. 1. K11, Saugeeta Mishra, Panel Lawyer, for the respondent no. 2. SB: HaN’BLE $E—mi J€JSTECE ELK. AGAR‘WAL O R D E R ( L1 9-2009) 1. The installt petition is directed against the order dated 17—6—2002 passed by Civil Judge Class-I, Mungeli in M.J.C. No. 2/2000 whereby and Whereunder, the execution under Order 21 Rule 32 of C.P.C‘ preferred by the petitioners,’ decree holders has been dismissed by the Court below on the ground that the decree of permanent prohibitory injunction cannot be executed under Order 2 1 Rule 32 of C.P.C. 2. Brief facts of the case are that in a suit bearing Civil Suit Not ’47—A/99 preferred by the petitioners/ defendanis, the Court of Civil Judge Class-I, Mungeli passacl ail ex—parte decree on 241-99 prohibiting permanently the jud@ent—debt0r/respondent No. 1 herein from interfering in any manner in title and posseseion of the petitioners over the land bearing Khasra No. 324 area 1.31 acre situated at Village Bagbudva. . The petitioners filed an application under Order 2 1 Rule 32 of C.P.C. before the Court beiow for enforcement of the said decree and prayed that for the due implementation of the said decree, the judgment debtor / respondent be sent to jail or his property be attached. . The respondent appeared in the matter and filed his reply. The Court below framed a legal issue that Whether a decree for prohibitory injunction can be implemented under Order 2 1 Rule 32 of C.P.C. ? . The Court below after. hearing learned counsel for the parties, decided the issue in favour of the respondent and dismissed the execution petition by holding that breach of decree for prohibitory injunction may be a contempt of court but such decree cannot be enforced under Order 2 l Rule 32 of C.P.C. Hence this petition. . Shri KA. Ansari, learned Senior'Counsel, appearing for the petitioners would submit that the provisions contained in Order 21 Rule 32 of C.P.C. are very clear. The judgment debtor can be compelled to obey the decree by executing the same under these provisions after affording him opportunity of obeying the decree and on his willfully failure to obey the same, by his detention in civil prison, or by attachment of his property or by both. .Per contra, Shri Avinash Mishra, learned counsel appearing for the respondent No. 1 would submit that the decree of prohibitory injunction cannot be enforced under Order 2 1 Rule 32. 8. The core issue involved in this case is Whether or not, a decree of permanent prohibitow injunction can be enforced by taking recourse of provisions contained in Order 2 1 Rule 32 of C.P.C. ? 9. Before considering the rival submissions put forth by the learned counsel for the parties, it would be appropriate to advert to the relevant provisions contained in Order 21 Rule 32 of C.P.C. which read as under: - “Order 21 Rule 32:- Decree for specific performance for restitution of conjugal rights, orfor an injunction.— (1} Where the party against whom a decree for the specific peiformance 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 faiied 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 pen‘brmance 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 civii 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- mZe (2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-wider 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- ho‘lder 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 attachment, no application to have the praperty said has been made, or if made has been rewed, the attachment shallcease‘ (5) Where a decree for the specijic peiformance of a contract orfor 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-hoider 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 bare perusal of the above provision would reveal that the decree of permanent injunction can be enforced under the provisions contained in Order 21 Rule 32 of C.P.C. after holding that such party has had an opportunity of obeying the decree and has willfully failed to obey it.’ Such decree of injunction may be enforced by his detention in the civil prison, or by the attachment of his property, or by both. Sub~rule 3 of Rule 32 of Order 21 of C‘P.C. provides that Where any attachment under sub’rule (l) or sub~rule (2) has remained in force for’six months and if the judgment— debtor has not obeyed the decree and the decree—holder has applied to have the attached property sold, sueh property may be sold; and out of the proceeds, me 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. Sub— rule 5 of Rule 32 of Order 21 of C.P.C. provides that if such decree has not been obeyed by the judgment— debtor, 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 10. a5certain€d in such manner as the Court may direct and may be recovered as if they were included in the decree. The explanation has been added vide Amendment Act, 2002 in this sub-rule which reads thus:- “Explanation.-For the removal of doubts, z't is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions. " ‘ A bare perusal of the explanation though added subsequent to the order passed by the trial Court, it is clear that no distinction has been made by the Legislature between the prohibitory injunction and mandatory injunction for its enforcement under the aforesaid provision In View of the aforesaid unambiguous statutoxy provisions, I have no hesitation to hold that a decree of permanent prohibitory injunction can be enforced under the provisions contained in Order 21 Rule 32 of C.P.C. in the manner as provided therein and dismissal of the application by the trial Court only on the gound that . such a decree cannot be enforced is patently illegal. Therefore, the petition deserves to be and' is hereby allowed and the order impug’ied is set aside. The matter is remitted back to the Court below to decide the I application filed by the petitioners on its own merits and in the manner as provided under provisions contained in Order 21 Rule 32 of C.P.C. Sd/— N.K. Agarwal Judge 11. 12. 13.