Case Note & Summary
The petitioner, Kareppa, filed writ petitions under Articles 226 and 227 of the Constitution of India challenging an order dated 23 March 2015 passed by the Principal Civil Judge and JMFC, Jamkhandi, in Execution Petition No.7/2014. The execution petition was dismissed as not maintainable. The petitioner had originally filed O.S. No.48/2009 against the respondents (Tahasildar, Taluka Surveyor, Deputy Commissioner, and State of Karnataka) seeking a decree of permanent injunction to restrain them from constructing any road on the suit land without due process of law. The suit was decreed on 27 March 2012, restraining the defendants from constructing any road on the suit land without due process of law. Subsequently, the petitioner filed Execution Petition No.7/2014 alleging that the respondents were trying to violate the decree. The judgment debtor No.2 (Taluka Surveyor) filed objections contending that the execution petition was not maintainable because the decree was only for bare injunction restraining construction, and since the road had already been constructed, in the absence of a decree directing removal of the road, the execution petition could not proceed. The executing court accepted this contention and dismissed the execution petition. The High Court, after hearing the petitioner's counsel, held that the decree was only for bare injunction and did not contain any direction for removal of the road. The court observed that the executing court cannot go beyond the decree and that the proper remedy for the petitioner would be to file a separate suit for mandatory injunction or for possession. The High Court dismissed the writ petitions, finding no error in the impugned order.
Headnote
A) Civil Procedure - Execution of Decree - Bare Injunction - Maintainability - Code of Civil Procedure, 1908, Order 21 Rule 32 - Where a decree for permanent injunction restraining construction of a road is obtained, but the road is already constructed, the decree cannot be executed by way of execution petition unless the decree also contains a mandatory injunction directing removal of the road. The executing court cannot go beyond the decree. (Paras 1-5) B) Specific Relief Act, 1963 - Section 38 - Permanent Injunction - Scope - A decree for bare prohibitory injunction does not entitle the decree-holder to seek removal of an already constructed road through execution proceedings. The proper remedy is to file a separate suit for mandatory injunction or for possession. (Paras 4-5)
Issue of Consideration
Whether an execution petition seeking to enforce a decree of permanent injunction restraining construction of a road is maintainable when the road has already been constructed and the decree does not contain a mandatory injunction for removal of the road.
Final Decision
Writ petitions dismissed. The impugned order of the executing court dated 23.03.2015 in Execution Petition No.7/2014 is upheld. The petitioner is at liberty to file a separate suit for mandatory injunction or for possession.
Law Points
- Execution of decree for bare injunction
- maintainability of execution petition after construction of road
- distinction between prohibitory and mandatory injunction
- Order 21 Rule 32 CPC
- Section 38 Specific Relief Act
- 1963
