Case Note & Summary
The dispute arose from execution of a decree for perpetual injunction. The respondent, as decree holder, had obtained a decree on 18.06.2011 in Regular Civil Suit No. 226 of 2007 for declaration and injunction against the petitioners. The decree was not appealed and became final. Alleging willful breach of the injunction, the respondent filed execution petition R.D. No. 23 of 2019 under Order XXI Rule 32 read with Sections 47 and 51 of the Code of Civil Procedure, 1908. In the execution proceedings, the respondent also filed an application Exhibit 11 under Order XXVI CPC seeking appointment of a Court Commissioner to measure the land. The executing court, by order dated 13.03.2024, allowed the application and directed the Commissioner to fix boundaries and install permanent boundary marks. The petitioners, as judgment debtors, challenged this order by way of the present writ petition, contending that they had not committed any breach of injunction and that a court commissioner cannot be appointed for collection of evidence. They further argued that the execution petition lacked cause of action and that the executing court had gone behind the decree. The respondent decree holder opposed the petition, stating that the execution petition clearly alleged destruction/removal of boundaries and that the decree holder was left with no alternative but to seek enforcement. The High Court, after hearing both sides, held that a court commissioner cannot be appointed for collecting evidence and that directions to fix boundaries and install permanent boundary marks were beyond the scope of Order 26 CPC. However, the court also observed that the execution proceedings themselves were lawful, as the application under Order 21 Rule 11 contained specific allegations of willful failure to obey the decree and Exhibit 11 alleged destruction of boundary marks after filing of the Darkhast. The court upheld the principle that an executing court cannot go behind the decree but found that in this case the decree holder was only enforcing the decree and not challenging it. Accordingly, the court partly allowed the writ petition by quashing the directions in the impugned order that required the Commissioner to fix boundaries and install permanent marks, while maintaining the execution proceedings. The burden was placed on the decree holder to establish the alleged breach and cause of action on the date of filing.
Headnote
A) Civil Procedure - Execution of Injunction Decree - Enforcement under Order 21 Rule 32, Sections 47 and 51 Code of Civil Procedure, 1908 - Decree holder can execute a perpetual injunction decree for willful disobedience through detention, attachment, or both; executing court determines all questions relating to execution and may order execution as nature of relief requires - Execution petition under Order 21 Rule 11 contained specific pleading that judgment debtors willfully failed to obey decree and application Exhibit 11 alleged destruction of boundary marks after filing of Darkhast - Held that execution proceedings are lawful subject to decree holder establishing breach and satisfying court that decree is capable of enforcement in manner sought (Paras 4-6). B) Civil Procedure - Appointment of Court Commissioner - Scope of Order 26 Code of Civil Procedure, 1908 - A court commissioner cannot be appointed for the purpose of collecting evidence for a party; directions to fix boundaries and install permanent boundary marks are beyond the object of Order 26 CPC - Executing court directed commissioner to fix boundaries and install permanent boundary marks in execution petition; such directions cannot be sustained - Held that to that extent the directions issued by the executing court must be quashed and set aside (Paras 2, 4-6). C) Civil Procedure - Execution - Prohibition on Executing Court Going Behind Decree - Sections 47, Order 21 Rule 32 Code of Civil Procedure, 1908 - Executing court cannot go behind the decree; however, where execution petition is for enforcement of decree, appointment of commissioner may be permissible if within law - Petitioners relied on Brakewel Automotive Components (India) Private Limited v. P.R. Selvam Alagppan, (2017) 5 SCC 371; court agreed with proposition but found no going behind decree on facts - Held that the proposition does not render entire execution proceeding impermissible because decree holders are enforcing decree, not challenging it (Paras 5-6). D) Civil Procedure - Execution - Pleading of Cause of Action - Order 21 Rule 11 Code of Civil Procedure, 1908 - Execution petition must disclose cause of action; burden lies on decree holder to show cause of action existed on date of filing - Execution petition paragraph 10 specifically alleged willful failure to obey decree; Exhibit 11 application alleged destruction of boundary marks even after filing Darkhast - Held that petitioner's contention of no averments of disobedience is factually incorrect, and matter remains to be proved by decree holders (Paras 5-6).
Issue of Consideration
Whether appointment of Court Commissioner under Order XXVI CPC in execution proceedings for fixing boundaries and installing permanent boundary marks is permissible; whether court commissioner can be appointed for collection of evidence; whether executing court can go behind the decree; whether execution petition discloses cause of action.
Final Decision
The High Court partly allowed the writ petition. The order dated 13.03.2024 passed by the Executing Court, to the extent it directed the Court Commissioner to fix boundaries and install permanent boundary marks, was quashed and set aside as beyond the scope of Order 26 CPC. The execution proceedings themselves were held to be lawful and permissible, subject to the decree holder establishing the alleged breach and cause of action. The prayer for direction to respondent no.2 to measure whole Survey No.574 was not granted.
Law Points
- A court commissioner cannot be appointed for collecting evidence
- directions to fix boundaries and install permanent boundary marks are beyond scope of Order 26 CPC
- decree holder can enforce perpetual injunction under Order 21 Rule 32 read with Sections 47 and 51 CPC
- executing court cannot go behind decree
- burden on decree holder to establish cause of action for execution
