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 court had dismissed the execution petition 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 following due process of law. The suit was decreed on 27 March 2012, granting a permanent injunction 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 and the road had already been constructed, so in the absence of a decree directing removal of the road, the execution 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 restraining construction of a road without due process of law. Since the road had already been constructed, the decree could not be executed to compel its removal. The executing court could not go beyond the decree and grant a mandatory injunction for removal. The High Court found no error in the impugned order and dismissed the writ petitions.
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 restrains the judgment debtor from constructing a road without due process of law, but the road has already been constructed, the execution petition is not maintainable as the decree does not contain a mandatory injunction for removal of the road. The executing court cannot go beyond the decree. (Paras 2-4) B) Specific Relief - Permanent Injunction - Prohibitory vs Mandatory - Specific Relief Act, 1963, Section 38 - A decree for bare injunction is prohibitory in nature and cannot be executed to compel removal of a structure already built. The decree holder must seek appropriate relief for mandatory injunction or possession. (Paras 3-4)
Issue of Consideration
Whether an execution petition seeking enforcement of a decree for permanent injunction restraining construction of a road is maintainable when the road has already been constructed and the decree does not contain a direction for removal of the road.
Final Decision
Writ petitions dismissed. The order of the executing court dated 23.03.2015 in Execution Petition No.7/2014 is upheld. No order as to costs.
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
