IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 10 of 2002. Reserved on: 8.8.2008. Decided on: 22.9.2008. __________________________________________________ Shri Fangan Ram … Petitioner. Versus Shri Jai Chand and others. … Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Bhupender Gupta, Sr.Advocate with Ms. Charu Gupta, Advocate. For the Respondents : Mr. K.D. Sood and Rajnish K. Lal, Advocates. ___________________________________________________________ Rajiv Sharma, Judge. This revision petition is directed against the order dated 6.12.2001 passed by the learned Sub Judge (2), Nurpur, District Kangra, H.P. in Execution Petition No. 63/96 (CMA). Brief facts necessary for the adjudication of this revision petition are that the petitioner filed a civil suit in the Court of Sub Judge III Class, Nurpur on 22.1.1982 for declaration along with consequential relief of permanent injunction. The suit was decreed by the learned Sub Judge III Class, Nurpur on 26.10.1984. The operative portion of the judgment dated 26.10.1984 reads thus: “In view of my findings on the issues above, the suit of the plaintiff for declaration to the effect that the plaintiff has a right to use the path situate in between the abadies of the parties situate in Tika and Mauza Bhugnara, Tehsil Nurpur, 9 feet in width shown as A.B. in the site plan (Ex. PW1/A) and 1 Whether reporters of the local papers may be allowed to see the judgment?No. 2 also shown as thorough fare in Khasra No. 1092 during the settlement proceedings and the drain which is shown as C.D. in the site plan (Ext. PW1/A) and that the defendants have no right to obstruct the path and the drain and for consequential relief of permanent injunction restraining the defendants from interfering in the plaintiff’s right in the use of path and the drain is hereby decreed. The site plan (Ex. PW1/A) and Akash Shajra Bandobast Jadid Mohal Bhugnara (Ex.PW1/B) shall form part of the decree sheet. However, there is no order as to costs in the circumstances of the case. Decree sheet be prepared accordingly. The file after completion be consigned to the record room.” The respondents preferred an appeal against the judgment and decree dated 26.10.1984 before the learned District Judge, Kangra Division at Dharamshala bearing No. 214/84. In view of the compromise arrived at between the parties in terms of their statements Ext. C1 to Ext.C3, the judgment and decree were up- held subject to the modification that the drain shown as ‘CD’ in the site plan Ext. PW1/A was to be constructed in terms and conditions of the compromise and statements Ext. C1 to Ext. C3 within the stipulated period. The appeal was disposed of on 10.3.1986. The order dated 10.3.1986 reads as under: “During the course of arguments, the parties have amicably settled the disputed claim in terms of contents recorded in the statements of parties and their learned counsel which are Exts. C1 to C3, respectively. I have gone through the record as also the said statements of the parties. The aforesaid amicable settlement arrived at between the parties appears to be reasonable, just and lawful, therefore, I allow the same. 3 In view of the compromise in terms of the statements of the parties Ext.C1 to Ext. C3 (which shall form part of the judgment), the impugned judgment and decree are upheld subject to the modification that the drain shown as ‘CD’ in site plan Ext.PW1/A shall be constructed in terms and conditions of the compromise exhibited in statements Ex.C1 to C3 within the stipulated period. In view of the amicable settlement, the parties are left to bear their own costs. Decree-sheet be prepared. Appeal is disposed of accordingly. File be consigned to Record Room after its due completion.” The petitioner filed an execution petition before the learned Sub Judge (2), Nurpur under Order XXI, Rule 32 of the Code of Civil Procedure. The application was disposed of by the learned Sub Judge (2), Nurpur on the basis of the statement of the petitioner on 10.1.1996. The respondents filed an execution petition under Order XXI Rule 32 of the Code of Civil Procedure in the Court of Sub Judge Ist Class, Nurpur for detention of the petitioner in civil prison and by attachment of his property for not complying with the judgment dated 10.3.1986 rendered in civil appeal No. 214/84. The petitioner filed reply to the application. The learned Sub Judge passed the impugned order on 6.12.2001, whereby the petitioner was called upon to obey the decree before 15.12.2001 failing which the respondents were directed to produce the revenue record regarding the property of the petitioner for attachment of the same. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the order dated 6.12.2001 is without 4 jurisdiction. He then contended that Order XXI Rule 32 of the Code of Civil Procedure could not be invoked against the decree holder. He further contended that the judgment and decree dated 26.10.1984 passed by the learned Sub Judge, Nurpur was upheld with only one modification, as noticed in order dated 10.3.1986. Mr. K.D. Sood, Advocate has argued that the order dated 6.12.2001 passed by the learned Sub Judge (2), Nurpur in Execution No. 63/96 is in accordance with law. I have heard the parties and have perused the record carefully. It will be apt at this stage to refer to the efforts made by this Court to enable the parties to settle the matter amicably. The Local Commissioner was appointed by this Court on 5.10.2007. The Local Commissioner furnished his report which is at page 22 of the paper book. The petitioner as well as the respondents filed their objections to the report filed by the Local Commissioner, i.e. Assistant Engineer, I&PH, Sub Division, Nurpur, H.P. Thereafter also, the Court strived to ensure that the matter is settled amicably between the parties. However, the matter could not be settled amicably. A very short question involved in this petition is whether Order XXI Rule 32 of the Code of Civil Procedure could be invoked against the decree holder. Order XXI Rule 32 reads thus: “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 5 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 principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub rule (1) and (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.” 6 It is evident from the phraseology employed in Order XXI Rule 32 (1) that it can be invoked against 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. In the present case, the petitioner was the decree holder as per the judgment of the learned Sub Judge dated 26.10.1984. In appeal, the judgment and decree were upheld except one modification that the drain shown as ‘CD” in the site plan Ext.PW1/A shall be constructed in terms and conditions of the compromise exhibited in statements Ext.C1 to Ext. C3 within the stipulated period. It is thus evident that it was the respondent who has suffered the decree and not the petitioner/plaintiff. In fact, the petitioner had also filed an execution petition before the learned Sub Judge (2), Nurpur, which was disposed of on 10.1.1996. The learned Sub Judge has committed material irregularity by entertaining and adjudicating upon the execution petition under Order XXI Rule 32 of the Code of Civil Procedure against the petitioner/plaintiff vide impugned order dated 6.12.2001. The application under Order XXI Rule 32 of the Code of Civil Procedure was not maintainable at all in view of the observations made hereinabove. The learned Sub Judge has proceeded as if the petitioner had suffered any decree that is why he has referred the petitioner in execution petition as ‘JD’. The learned Sub Judge has 7 failed to take into consideration Order XXI Rule 32 (1) of the Code of Civil Procedure. The order passed by the learned Sub Judge dated 6.12.2001 is without jurisdiction and is liable to be set aside. Accordingly, the revision petition is accepted and the order dated 6.12.2001 is set aside. No costs. (Rajiv Sharma), J. September 22, 2008. (cr)