Case Note & Summary
The dispute concerned execution of a decree for perpetual injunction in respect of Grampanchayat House No.841 (old G.P. House No.993), admeasuring 30 ft. x 25 ft., situated at Jafrabad, Jalna. The respondent, as decree holder, had filed Regular Civil Suit No.143/2008 against the petitioners, who were judgment-debtors, seeking perpetual injunction to restrain obstruction to his peaceful possession. The Trial Court decreed the suit on 29.10.2009, recording a finding of the respondent's possession and perpetually restraining the petitioners from causing obstruction or interference. That decree attained finality as no further challenge survived. Subsequently, the respondent filed Regular Darkhast No.8/2019 before the Civil Judge Junior Division, Jafrabad, alleging that on 25.12.2018, while he was out of station, the petitioners broke the lock of the suit house, forcefully entered with household articles, and petitioner no.1 started residing there. The respondent further alleged that when he returned on 01.02.2019, the petitioners abused him and threatened to kill him. He sought execution of the decree, restoration of possession with police aid, civil imprisonment of the judgment-debtors, and compensatory cost of Rs.2,00,000. The Executing Court framed points for consideration, recorded evidence of both parties, and by order dated 13.07.2023 directed the petitioners to hand over possession of the suit house to the respondent. The petitioners' Regular Civil Appeal No.78/2023 before the District Court, Jalna was dismissed by order dated 12.09.2023, upholding the Executing Court's direction. The petitioners then filed Writ Petition No.13859 of 2023 challenging both orders. Petitioners argued that a decree for perpetual injunction could not be executed by ordering recovery of possession; that there was no evidence of respondent's actual possession or forcible dispossession; that the decree itself was invalid in absence of proof of partition; and that under Order XXI Rule 32 of the Code of Civil Procedure, execution of a prohibitory injunction could only be by detention of judgment-debtors or auction sale of property, not delivery of vacant possession. The respondent supported the impugned orders. The High Court rejected the petitioners' contentions. It observed that the trial court's decree had attained finality and the petitioners could not claim possession over the suit property once a final decree of prohibitory injunction was passed upholding the respondent's possession. The court then interpreted Order XXI Rule 32(5) of the Code of Civil Procedure, noting the Explanation inserted with effect from 01.07.2002, which clarifies that a decree for prohibitory injunction can also be enforced by directing recovery of possession where the judgment-debtor disobeyed the decree. Relying on Sabitri Khuntia v. Ram Avatar Modi, Kapoor Singh v. Om Prakash, Kuni Mohanty v. Upendra Barik, and Meera Chauhan v. Harsh Bishnoi, the court held that the executing court has jurisdiction to restore possession to a decree holder dispossessed in violation of an injunction decree, and the decree holder cannot be compelled to file a separate suit. The court further held that the civil court which passed the decree is guardian of the decree and can exercise inherent powers to restore the decree holder to the position that existed at the time of the decree. Accordingly, the writ petition was dismissed, Rule discharged, and the orders directing delivery of vacant possession were upheld.
Headnote
A) Civil Procedure - Execution of Decrees - Injunction Decree and Possession - Code of Civil Procedure, 1908 (CPC), Order XXI Rule 32(5), Explanation - The executing court directed judgment-debtors to deliver vacant possession of the suit house in execution of a perpetual injunction decree after they forcibly entered the property during the decree holder's absence. The court held that Explanation to sub-rule (5) of Rule 32 of Order XXI CPC, effective from 01.07.2002, allows a decree for prohibitory injunction to be enforced by directing recovery of possession where the judgment-debtor disobeyed the decree. Held that execution by delivery of possession was permissible (Paras 8-9, 14). B) Civil Procedure - Execution Jurisdiction - Restoration of Possession upon Breach - Code of Civil Procedure, 1908 (CPC), Order XXI Rule 32(5) - Petitioners contended that a decree for perpetual injunction could only be executed under Order XXI Rule 32 by detention or attachment of property, and that a separate suit for possession was required. The court rejected the narrow construction, relying on Sabitri Khuntia, Kapoor Singh, and Kuni Mohanty, and held that an executing court has jurisdiction to restore possession to a decree holder dispossessed by the judgment-debtor in violation of a prohibitory injunction; the decree holder cannot be compelled to file another suit. Held that the executing court rightly ordered delivery of possession (Paras 5, 9-11). C) Civil Procedure - Inherent Powers of Executing Court - Restitution for Breach of Injunction - Code of Civil Procedure, 1908 (CPC), Sections 151 and Order XXI Rule 32(5) - The Supreme Court in Meera Chauhan v. Harsh Bishnoi observed that when a party violates an injunction order and forcibly dispossesses the other, the court can order restoration of possession and police aid. The court reasoned that a civil court which passed the decree is guardian of the decree and can exercise inherent powers to restore the decree holder to the position at the time of the decree. Held that the executing court could enforce the decree by restoring possession (Paras 12-13). D) Civil Procedure - Finality of Decree - Binding Effect of Perpetual Injunction - Code of Civil Procedure, 1908 (CPC), Order XXI Rule 32 - Petitioners contended they were in continuous possession before the suit; executing court found they forcibly entered during the decree holder's absence. The court held that once the final decree of perpetual injunction is passed upholding the decree holder's possession, the judgment-debtor cannot claim possession over the suit property. Held that the contentions were not acceptable (Para 8).
Issue of Consideration
Whether the executing court can direct delivery of possession in execution of a decree for perpetual injunction; whether Order XXI Rule 32(5) of the Code of Civil Procedure, 1908 permits enforcement of a prohibitory injunction by directing recovery of possession where the judgment-debtor has breached the decree.
Final Decision
Writ Petition is rejected. Rule is discharged. The orders dated 12.09.2023 passed by District Judge, Jalna in Regular Civil Appeal No.78/2023 and dated 13.07.2023 passed by Civil Judge Junior Division, Jafrabad in Regular Darkhast No.8/2019 are upheld. The petitioners/judgment-debtors are directed to deliver vacant possession of the suit house to the respondent/decree holder.
Law Points
- Decree for prohibitory injunction can be enforced by directing recovery of possession where judgment-debtor has disobeyed the decree
- Explanation to sub-rule (5) of Rule 32 of Order XXI of Code of Civil Procedure
- 1908 enables enforcement of prohibitory injunction by recovery of possession
- executing court has jurisdiction to restore possession to decree holder dispossessed in violation of injunction
- narrow interpretation of Order XXI Rule 32(5) rejected
- decree holder cannot be compelled to file separate suit
- court that passed decree is guardian of decree and can exercise inherent powers to restore status quo ante
- once final decree of perpetual injunction passed judgment-debtor cannot claim possession over suit property
