High Court

Legal Reasoning

(1) wp-13859-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO.13859 OF 20231.Mujiboddin Hakimoddin,Age: 40 years, Occ.- Agriculture,R/o. Jafrabad, Tal. Jafrabad, Dist. Jalna.2.Ikramoddin Hakimoddin,Age: 51 years, Occ.- Agriculture,R/o. Jafrabad, Tal. Jafrabad, Dist. Jalna...PetitionersVersusShamshuddin Nijamoddin,Age: 70 years, Occ- Agriculture,R/o. Jafrabad, Tal. Jafrabad, Dist. Jalna...Respondent …Mr. Shaikh Mazhar A. Jahagirdar, Advocate for Petitioners.Mr. R. O. Awasarmol, Advocate for Respondent.… CORAM : S. G. CHAPALGAONKAR, J.Reserved On : 23rd JULY, 2025.Pronounce On : 29th JULY, 2025. JUDGMENT:- 1.Rule. Rule made returnable forthwith. With consent of theparties, matter is taken up for final hearing at admission stage.2.The petitioners/judgment-debtors impugn order dated12.09.2023 passed by learned District Judge, Jalna in Regular CivilAppeal No.78/2023, thereby upholding order dated 13.07.2023passed by learned Civil Judge Junior Division, Jafrabad in RegularDarkhast No.8/2019, by which petitioners/judgment-debtors aredirected to deliver vacant possession of suit house torespondent/decree holder. (2) wp-13859-2023.odt3.The respondent had instituted Regular Civil SuitNo.143/2008 seeking decree of perpetual injunction againstpetitioners in respect of house property i.e. Grampanchayat HouseNo.841 (old G. P. House No.993) situated at Jafrabad. The TrialCourt decreed suit vide judgment and order dated 29.10.2009 andrestrained petitioners from obstructing peaceful possession ofrespondent over suit house. The decree passed by Trial Court hasattained finality.4.The respondent/decree holder filed Regular DarkhastNo.8/2019 before Civil Judge Junior Division at Jafrabad seekingexecution of decree dated 29.10.2009 contending that petitioners inbreach of decree of perpetual injunction put articles in suit houseand petitioner no.1 has actually started residing in it. Therespondent, therefore, sought police aid for restoration ofpossession, so also prayed for putting petitioners in civil prison andclaimed compensatory cost of Rs.2,00,000/-. The Executing Courtissued notices to petitioners. They filed their say. According tothem, once respondent/decree holder admitted possession ofpetitioners, it is expected to file separate suit for recovery ofpossession. The learned Executing Court then framed points forconsideration and recorded evidence of parties. Therespondent/decree holder recorded his evidence on oath and statedthat since he was out of station, in the evening of 25.12.2018 (3) wp-13859-2023.odtpetitioners broke lock of suit house and forcefully entered into suithouse alongwith household articles. On 01.02.2019, when he cameback, petitioners abused him and gave threat to kill him. Thepetitioner no.1 recorded his evidence. He denied ownership ofrespondent over Grampanchayat House No.841 i.e. suit property.The learned Executing Court after considering aforesaid evidencedirected petitioners to hand over possession of suit house in favourrespondent. In Regular Civil Appeal No.78/2023 filed bypetitioners before District Court, order as passed by ExecutingCourt is confirmed.5.Mr. Jahagirdar, learned Advocate appearing for petitionersvehemently submits that decree of perpetual injunction was passedin favour of respondent. However, under garb of execution of suchdecree he is trying to obtain possession of suit property frompetitioners. According to Mr. Jahagirdar, there was no evidencebefore Executing Court to establish that respondent was inpossession of suit property and he has been forcefully dispossessedby petitioners. He would submit that decree as passed by TrialCourt was invalid, in absence of proof of partition. According toMr. Jahagirdar, property in which respondent was residing hasbeen acquired and petitioner no.1 was residing in his property,which is shown as suit property. According to Mr. Jahagirdar,decree of perpetual injunction could have been executed in terms of (4) wp-13859-2023.odtOrder XXI Rule 32 of Code of Civil Procedure, which prescribes formode of detention of judgment-debtors or auction sale of hisproperty. However, there cannot be order to deliver vacantpossession.6.Per contra, Mr. Awasarmol, learned Advocate appearing forrespondent supports impugned order.7.Having considered submissions advanced and on perusal ofmaterial tendered before this Court, it can be observed thatrespondent had instituted suit for perpetual injunction againstpetitioners alleging obstruction to his possession over suit housebearing Grampanchayat No.841 (old G. P. House No.993)admeasuring 30 ft. x 25 ft. situated at village Jafrabad. Thedescription of suit property is given with its four boundaries. Thepetitioners, who were defendants in that suit caused theirappearance and took stand that at the time of partition ofproperties respondent had relinquished his share in the houseproperty situated at Jafrabad as he was settled in Mumbai and,therefore, their father allotted the same to other brothers excludingpetitioners. The Trial Court after considering pleadings andevidence recorded by parties, decreed suit holding plaintiff’spossession over suit property. Eventually, petitioners wereperpetually restrained from causing any sort of obstruction andinterference in possession of plaintiff over suit house. The (5) wp-13859-2023.odtaforesaid decree has attained finality. In this background,respondent filed execution proceeding in Regular DarkhastNo.8/2019 contending that taking advantage of fact that he was outof station, petitioners forcefully entered in suit house and tookpossession in breach of injunction order.8.The Executing Court recorded evidence of parties. Theplaintiff and his witnesses narrated that defendants have forcefullytook possession of house property. The fact remains that decree ofperpetual injunction is passed against petitioners and duringsubsistence of such decree, petitioners have acquired possession.Although they are trying to contend that they were continuously inpossession even prior to institution of suit, such contentions cannotbe accepted, since rights of parties were crystallized while passingdecree. The petitioners cannot claim their possession over suitproperty once final decree of prohibitory injunction is passedagainst them upholding possession of respondent.9.So far as contention of Mr. Jahagirdar that decree ofprohibitory injunction has to be executed in a manner providedunder Order XXI Rule 32 of Code of Civil Procedure, there cannotbe two views. However, it requires true and correct understandingof interpretation of said provision. Explanation to sub-rule (5) ofRule 32 of Order XXI of Code of Civil Procedure came into forcew.e.f. 01.07.2002. Careful reading of aforesaid Explanation would (6) wp-13859-2023.odtshow that decree of prohibitory injunction can also be enforced bydirecting recovery of possession where judgment-debtor haddisobeyed decree.10. In case of Sabitri Khuntia and Others v. Ram AvatarModi1, it has been held that decree for prohibitory injunction canbe executed taking recourse to sub-rule (5) of Rule 32 by removingconstruction raised by judgment-debtor in violation of decree. Inyet another judgment delivered by Panjab and Haryana HighCourt in case of Kapoor Singh v. Om Prakash2, it has beenobserved that in the event of violation of a decree for prohibitoryinjunction by way of dispossession of the decree holder by thejudgment-debtors, the executing court has jurisdiction to restorepossession in favour of the decree holder, who cannot be compelledto file another suit. In that case, it is clarified that sub-rule (5) ofRule 32 cannot be given narrow interpretation to apply the sameonly to decree of mandatory injunction and not prohibitoryinjunction.11.Single Judge of Orissa High Court in case of Kuni MohantyVs. Upendra Barik and Others3 while interpreting provision ofsub-rule (5) of Rule 32 of Order XXI observed thus :1(2006) (II) CLR-368.2AIR 2009 PNH 18832016 AIR CC 2610 (ORI) (7) wp-13859-2023.odt“ The answer in my considered view has to be in theaffirmative that when a decree for injunction is sought tobe executed resorting to the provision of sub-rule (5 of Rule32 of Order 21 and in the process, a person is threatenedwith dispossession or is dispossessed, he has a right tocomplain in accordance with the provision of the rulescontained from Rule 97 onwards cannot be shown the doorof exit merely on such technical ground that it being not theexecution of a decree for possession but a decree forinjunction sought to be executed, the claim is notentertainable at all. Such a narrow construction in myconsidered view will run contrary to the intention of theLegislature in enacting the provision of law, i.e., Order 21,Rule 99 of the Code as also law laid down by the ApexCourt in all those cases (supra). Moreover, when the decreefor injunction is sought to be enforced by resorting theprovision of Order 21, Rule 32 (5) of the Code, the same forthe purpose has to be taken to be a decree for possession sofar as the third party/claimant is concerned.”12.In case of Meera Chauhan Vs. Harsh Bishnoi,4 theHon’ble Supreme Court of India observed in paragraph nos. 17,18 and 19 which reads thus :-“17. In Manohar Lal Chopra vs. Rai Bahadur Rao RajaSeth Hiralal, while dealing with the power of the Court topass orders for the ends of justice or to prevent the abuse ofthe process of the Court, the Hon’ble Supreme Court heldthat the courts have inherent jurisdiction to issue temporaryorder of injunction in the circumstances which are notcovered under the provisions of Order XXXIX of the Code ofCivil Procedure Code.18. At the same time, it is also well settled that when partiesviolate order of injunction or stay order or act in violation ofthe said order the Court can, by exercising its inherentpower, put back the parties in the same position as theystood prior to issuance of the injunction order or giveappropriate direction to the police authority to render aid tothe aggrieved parties for the due and proper implementationof the orders passed in the suit and also order policeprotection for implementation of such order.4(2007) 12 SCC 201 (8) wp-13859-2023.odt19. It is also well settled that when in the event of utterviolation of the injunction order, the party forciblydispossesses the other, the Court can order restoration ofpossession to the party wronged.” 13.It can be observed that Civil Court, who has passed decree isalso guardian of such decree and in case of breach of directionsunder decree, Civil Court is not powerless to exercise inherentpowers and restore decree holder in the position as he was at thetime of granting decree of perpetual injunction. If judgment-debtorbreaches such decree and does some acts to frustrate decree, Courtcan use such powers and take all those necessary steps to guarddecree. 14.In that view of the matter, this Court do not find any merit inWrit Petition. Hence, Writ Petition stands rejected.15.Rule is discharged.(S. G. CHAPALGAONKAR)JUDGEDevendra/July-2025