1 wp3348/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3348 OF 2011 Kakasaheb s/o Suryabhan Jadhav, Age 45 years, Occupation Agriculture, Resident of Ballalisagaj, Taluka Vaijapur, District Aurangabad Petitioner V E R S U S 1 Machindra s/o Ambu Jadhav, Age 70 years, Occupation Agriculture, Respondents 2 Dhondiba s/o Ambu Jadhav, Age 65 years, Occupation Agriculture, Both resident of Ballalisagaj, Taluka Vaijapur, District Aurangabad Shri B.S. Shinde, Advocate for the petitioner Shri A.D. Kasliwal, Advocate, holding for Shri K.U. Nikam, Advocate for respondent No.1 CORAM : A.V. NIRGUDE, J. DATED : 9th August, 2011 ORAL JUDGMENT : 1. Heard. 2. Rule. Rule made returnable forthwith. 3. By consent of the parties the writ petition is taken up for final hearing and heard finally. 4. This writ petition filed under Articles 226, 227 of the Constitution of India challenging the order dated 29th January, 2011, passed by the learned Joint Civil Judge, Junior Division, Vaijapur, District Aurangabad, in Regular Darkhast No. 15 of 2010. This Regular Darkhast was filed by the petitioner for execution of a decree of perpetual injunction, which his father obtained way back in 1981, against respondent No. 1 and another person, who died 2 wp3348/11 in the mean time. The petitioner filed Regular Darkhast by filling up a printed format without giving details as to what circumstances required him for taking up this proceeding. 5. After notice was served, the respondent No.1 submitted a detail reply as to why the execution of the decree is not possible now. The learned Judge of the execution Court has so far not done anything for deciding as to "whether the decree can be executed as per the provisions of Rule 32 of Order XXI of Code of Civil Procedure?" In other words, the learned Judge of the execution Court is still sitting over the reply filed by respondent No.1. In the mean time, the petitioner once again applied to the learned Judge of the execution Court for providing him police protection in order to implement the decree of perpetual injunction. The learned Judge of the execution Court however rejected the application. The learned Judge without examining as to whether there is willful disobedience on the part of the respondents, held that providing police help is not a one of the methods contemplated under Order XXI Rule 32 of Code of Civil Procedure and so the application was rejected. The learned Judge of the execution Court is required to be guided as to how he would deal with this Darkhast. Order XXI Rule 32 of Code of Civil Procedure reads as under : 32. Decree for specific performance or 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 inunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced int he 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 prison, or by the attachment of his property, or by both. 3 wp3348/11 (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) or sub-rule (2) has remained in force of 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 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. In view of part sub-rule (1) high lighted above, the decree-holder is under obligation to prove that the judgment-debtor had an opportunity for obeying the decree and he had willfully failed to obey it. In order to prove this, the decree-holder has to narrate the facts which gave rise to an occasion to take out this proceeding. In other words, he has to explain to the Court that the judgment-debtor had an opportunity of obeying the decree, and despite such an opportunity being given to him, he willfully failed to obey it. The decree-holder simply stated in his application that cause of action arose on 13th February, 2010, but has not explained as to 4 wp3348/11 what had happened on that day. I think, the petitioner deserves an opportunity to explain the circumstances as to how he would prove that the judgment-debtor had an opportunity of obeying the decree and yet he failed to do so. In case such statement is made on facts by filing of an additional affidavit, the respondents / judgment-debtors would have an opportunity to raise all possible objections for opposing the application. 7. While I was hearing the submissions of learned Advocates, I heard the respondents’ Advocate saying that since the original decree-holder is dead and since the decree is a decree in personam, it had ceased its effect on the death of the decree-holder. I am not making any comments on this submission, but I would keep this point open for the learned Judge of the lower Court. I, therefore, directing the learned Judge of the lower Court to decide the Regular Darkhast in the manner suggested above. The learned Judge may give opportunity to the parties to lead evidence and decide the relevant questions. Though the writ petition partly succeeds, I am not setting aside the impugned order, because, as said above, it was passed before deciding the pertinent questions that arose in the Regular Darkhast. Rule is made absolute. ( A.V. NIRGUDE, J. ) SRM/wp/3348/11/9/8/11ok