IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.5553 of 2008 Date of Decision : 18.08.2009 Prem Chand .....Petitioner versus Smt.Kamla Devi and another .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.K.S.Bassi, Advocate, for the petitioner. Mr.Vijay Sharma, Advocate, for the respondents. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- ORDER Surya Kant, J. (Oral) This order shall dispose of Civil Revision Nos.5553 of 2008 and 907 of 2009, as common questions of law and facts are involved in both these revision petitions. For brevity, the facts are being extracted from Civil Revision No.5553 of 2008. While the first revision petition is directed against the warrants of possession issued by the Executing Court, Patiala on 11.8.2008, the second revision petition assails the orders dated 6.8.2008 C.R. No.5553 of 2008 2 and 25.11.2008 passed by the Courts below dismissing the petitioner- judgment debtor's objections filed in the execution application. In order to appreciate the issues involved, a brief reference to the facts may also be made. The respondents, who are the sisters of the petitioner, filed a suit for mandatory injunction against him, inter-alia, seeking a decree of mandatory injunction to direct him to hand-over the vacant possession of the disputed portion of the house in question. The case of the plaintiff- respondents was that their brother namely, the petitioner, is a licencee who was permitted to reside in a portion of the house in dispute on the condition that he will vacate and hand over its possession to them as and when required by them. As the petitioner allegedly failed to hand over the vacant possession despite notices dated 5.8.1997 as well as 3.9.1997, that the respondent-plaintiffs were compelled to file the suit. The petitioner resisted the respondents' claim and took up a plea that the house in dispute is a Joint Hindu Family coparcenary property in which he has a right, title and share being the co-parcener. He took an alternative plea of tenancy also claiming that his father had rented out one room, kitchen, bathroom, two stores and toilet to the petitioner on rent @ Rs.50/- per month, though having regard to the close relationship, no rent note was executed nor the rent receipt issued. The parties went on trial on the following issues:- “1. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP. C.R. No.5553 of 2008 3 2. Whether there exists relationship of tenant and landlord between the parties as alleged in the written statement, if so, its effects? OPD. 3. Whether the present suit is not maintainable? OPD. 4. Whether the property in question is ancestral one as alleged in written statement, if so, its effects? OPD. 5. Relief.” The Civil Court vide its judgment and decree dated 11.1.2007 decreed the suit and directed the petitioner to hand over the vacant possession of the premises in dispute to the plaintiffs within a period of three months from the date of receipt of a copy of the order. The decree sheet of the even date stipulated that:- “..It is, hereby, ordered that the suit of the plaintiff stands decreed and defendant is directed to hand over the vacant possession of the premises in dispute to the plaintiffs within the period of three months from the date of receipt of certified copy of this judgment. In view of facts and circumstances, parties are left to bear their own costs.” It may be mentioned here that the petitioner also filed a Civil Suit No.150-T of 2001 for declaration and permanent injunction in which the respondents were arrayed as defendant Nos.2 & 3. In that Civil Suit, the petitioner challenged the validity of three sale deeds, one dated 14.5.1998 and two dated 27.7.1998, executed by his father-defendant No.1 (since deceased) in favour of defendant Nos.2 to 4 including his two sisters, namely, the respondents herein. The following issues were framed in the said civil suit:- “1. Whether the plaintiff is entitled for declaration that C.R. No.5553 of 2008 4 registered sale deed dated 14.5.1998 and 27.7.1998 executed by defendant Nos.1 and 2 respectively regarding the house No.135/6 fully described in the head note of the plaint in favour of defendant No.3 is illegal, null and void? OPP. 2. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP. 3. Whether suit is false, if so, its effect? OPD. 4. Whether suit is not maintainable in the present form? OPD. 5. Whether plaintiff has no cause of action and locus standi to file the present suit? OPD. 6. Whether the suit is barred by the principles of res judicata? OPD. 7. Whether suit of the plaintiff is barred under Order 2 Rule 2 of CPC? OPD. 8. Whether suit is barred under Order 23 Rule 4 CPC? OPD. 9. Whether the present suit is filed just to harass the defendants? OPD. 10. Whether the present suit is counterblast to the suit filed by the defendants? OPD. 11. Whether plaintiff has not come to the Court with clean hands? OPD. 12. Relief.” The afore-said suit was dismissed by the Civil Judge, Patiala vide the judgment and decree dated 11.1.2007. It is an admitted fact that the judgment and decree dated 11.1.2007 whereby the suit for mandatory injunction filed by the C.R. No.5553 of 2008 5 respondents was decreed as well as another judgment and decree of even date, whereby declaratory suit filed by the petitioner against his father and sisters was dismissed, have attained finality. The respondents-decree holders filed an execution application for execution of the decree dated 11.1.2007 for mandatory injunction passed in their favour. Upon notice, the petitioner-judgment-debtor filed an Objection Petition under Order 21 Rules 29, 97, 101 read with Section 47 of the CPC, which has been dismissed by the Executing Court vide the impugned order dated 6.8.2008, challenged in Civil Revision No.907 of 2009. Pursuant to the same order, the Executing Court has also issued warrants of possession on 11.8.2008, giving rise to the first Revision Petition No.5553 of 2008. Meanwhile, the petitioner's appeal against the order dated 6.8.2009 passed by the Executing Court, was dismissed by the Additional District Judge (Adhoc), Patiala vide his judgment dated 15.11.2008, which is also subject matter of challenge in Civil Revision No.907 of 2009. Learned counsel for the parties have been heard at some length and the impugned orders have been perused. The star contention raised on behalf of the petitioner- judgment debtor is that warrants of possession under Order 24, Rule 35 CPC cannot be issued for execution of a decree for `mandatory injunction' and in such like cases, the Executing Court has to follow the procedure as provided under Order 21 Rule 32 CPC. It is argued that if a judgment- debtor defies a decree of `mandatory injunction', the only recourse left to C.R. No.5553 of 2008 6 be taken by the Executing Court is to take coercive action against him in terms of Order 21 Rule 32 CPC only, but `warrant of possession' can not be issued against him under Order 21 Rule 35 CPC. Learned counsel for the petitioner took pains to elaborate that a judgment-debtor in execution of a decree for mandatory injunction can never be directed to deliver the possession for which the decree-holder has to file a separate suit for possession. He relies upon ta Full Bench decision of the Delhi High Court in Sarup Singh versus Daryodhan Singh, AIR 1972 Delhi 142 (FB). Reference is also made to two decisions of this Court in (i) Prithivi Singh and another versus Natha Ram and another, 1980 P.L.J.199, and (ii) Narinder Singh versus Maya Devi, 1999 (1) RCR (Civil) 445 . It is further contended that the Executing Court has exceeded its jurisdiction by issuing the warrants of possession, overlooking the facts that the judgment and decree dated 11.1.2007 has been secured by the respondents by playing fraud on the Court and in this regard the petitioner has also already filed yet another suit for possession in which declaration to set-aside the subject judgment and decree dated 11.1.2007, has also been sought. Learned counsel for the respondent-plaintiffs, on the other hand, has refuted the petitioner's contentions and urged that the decree for mandatory injunction can be given effect by the Executing Court by issuing the warrants of possession and it is not necessary to proceed the matter under Order 21 Rule 32 CPC. He also relies upon a decision of this Court in Gurcharan Singh and another versus Gurdwara Shri Singh Sabha, 2004 (2) P.L.R.330, wherein the Full Bench decision of the Delhi C.R. No.5553 of 2008 7 High Court in Sarup Singh's case (supra) has been distinguished. Reference is also made to the view subsequently taken by the Delhi High Court in Mohd.Naseem vesus Chaman Ara Begum, 1998 (1) R.C.R. (Civil) 284, as well as by the Orissa High Court in Nilamani alias Niranjan Biswal and another versus Krishna Kumar Kamani and others, 2007 (5) R.C.R. (Civil) 491. In order to appreciate the rival contentions, it would be useful to refer to the Rules 32 and 35 of the Order 21 CPC, which read 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 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 principle 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 C.R. No.5553 of 2008 8 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.” “35. Decree for immovable property:- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refused to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.” Rule 32 reproduced above, contemplates a procedure to be followed by the Executing Court while executing a decree for specific performance of a contract or for restitution of conjugal rights or for an injunction. Sub-Rule (5) thereof provides that where a decree for specific performance of a contract or for an injunction has not been obeyed, the C.R. No.5553 of 2008 9 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. The expression “act required to be done” has been explained in the Explanation attached thereto which covers the prohibitory as well as `mandatory injunctions'. In the case in hand, the mandatory injunction decree dated 11.1.2007 expressly directs the petitioner to hand over the vacant possession of the property in dispute to the respondent-plaintiffs. The Executing Court, having been satisfied that the petitioner is in a defiance mood and does not want to hand over the vacant possession of the property to the decree holders despite coercive steps already taken, is well within its jurisdictional right under Sub-Rule (5) to take an additional action which includes the issuance of a warrant of possession to give effect to the said decree, provided that it is practicable for the decree- holder to enter and take such possession. Learned counsel for the petitioner, however, urges that the warrants of possession are liable to be set-aside for the short reason that the same have been issued under Rule 35 which provides procedure for execution of a decree for immovable property which, according to the learned counsel, would mean the execution of a `decree of possession' only. His contention is that Rule 35 CPC does not apply to a decree for mandatory injunction. The contention cannot be accepted for more than two reasons. Firstly, wrong mentioning of the provision of law does not C.R. No.5553 of 2008 10 invalidate an action, if otherwise permissible under an other provision of law. Since the Executing Court was competent to issue warrants of possession under Order 21 Rule 32 (5) CPC, mere mentioning of Rule 35 CPC in the warrant of possession, does not render the process without jurisdiction. Secondly, it appears to me that the scope of Rule 35 also cannot be restrictively construed to be confined to the execution of a decree for possession only. Sub Rule (1) of Rule 35 CPC says that “where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged......”. The nature of decree shall, thus, determine as to whether or not Rule 35 can be invoked. Where a decree of mandatory injunction expressly commands the judgment-debtor to deliver possession of an immovable property, there is nothing to preclude the Executing Court from pressing Rule 35, Order 21 CPC into aid to give effect to the decree. For the reasons aforestated, I do not find any merit in these revision petitions and dismiss the same but without any order as to costs. 18-08-2009 (SURYA KANT) Mohinder JUDGE