Pholla v. Roop Chand others and further to confirm the order dated

further to confirm the order dated 25.02.2003, passed by Civil Judge (S.D.) Roorkee in Execution Case No.02 of 1997, Roop Chand & others vs. Pholla.

2. Facts in brief are that the predecessors of petitioner nos. 1 to 6 were the plaintiffs in O.S. No.43 of 1996, Roop Chand & others vs. Pholla and were also the decree holders/applicants in Execution Case No.02 of 1997, Roop Chand & others vs. Pholla. They are aggrieved by the judgment dated 28.05.2013 passed by Additional District Judge, Roorkee, Haridwar in Civil Revision No.17 of 2003, Pholla vs. Roop Chand & others whereby the revisional court has partly allowed the revision in regard to the order for delivery of possession passed by Executing Court only on the grounds that 1 since the judgment debtor had taken possession of the disputed property subsequent to the passing of decree for prohibitory perpetual injunction, hence it was a new cause of action, therefore, the Executing Court committed irregularity in granting the relief of possession.

3. The learned counsel the petitioner submits that the revisional court while passing the impugned judgment despite considering admissions of the judgment debtor/respondent in regard to taking over of possession by the judgment debtor/respondent after the passing of decree in favour of plaintiffs/decree holders had passed the impugned judgment partly allowing the revision and setting aside the order of Executing Court dated 25.02.2003 in regard to delivery of possession while confirming the rest of the order had exercised its jurisdiction illegally with material irregularity. He further submits that the revisional court has failed to consider the vast and broad ambit of Order 21 Rule 32 CPC and has only passed the impugned judgment on the grounds that the Executing Court cannot go beyond the decree overlooking the factual aspect of the present case. The revisional court has also failed to appreciate and apply the trite law that multiplicity of proceedings should be avoided and procedure is only a handmaid of justice and technicalities cannot come in way of dispensing justice.

4. The learned counsel further submits that the impugned judgment has been passed by revisional court only on the ground that consequent to decree of prohibitory injunction, dispossession of decree holder 2 by the judgment debtor amounts to a new cause of action for which a new suit shall lie. In passing the impugned order, the revisional court has failed to appreciate that consequent to order dated 25.02.2003, that an order for possession was issued to the Ameen, Civil Court, who got it executed and delivered the possession to the decree holder on 03.03.2003 and also a memo of possession was prepared and filed before the Executing Court and since the possession was delivered to decree holders/petitioners hence on the date of presentation of revision, no rights survived to challenge the order passed by Executing Court. He further submits that the decree holders had filed Execution Case No.02 of 1997 against the judgment debtors on the grounds that judgment debtors are interfering in his possession and subsequently, the execution petition was amended treating that the judgment debtors after the purchase of crop in auction had taken over the possession of disputed property. Therefore, a relief for removal of possession was sought by way of amendment in execution petition. Further, the order was passed on the basis of admission by the judgment debtor i.e. he is cultivating the disputed property. He further relied upon the judgments of Hon’ble Supreme Court in the case of Jai Dayal & others vs. Krishan Lal Garg & another; reported in 1997 AIR (Supreme Court) 3765 and B. Gangadhar vs. B.G. Rajalingam; reported in 1996 AIR (Supreme Court) 780.

5. The learned counsel for the respondent relying upon his counter affidavit submits that in a suit for prohibitory injunction, a decree passed by the court 3 is only executable in the manner prescribed in Order 21 Rule 32 of CPC. A decree of prohibitory injunction cannot be executed as a decree of possession in delivering the possession to the decree holder from the judgment debtor. He further submits that it is a settled proposition of law that the Executing Court cannot traverse beyond decree. Therefore, the revisional court has committed no irregularity in passing the impugned order. He further relied on the judgment of Co-ordinate Bench of this Court in the case of Baisakhu Lal vs. Civil Judge (Junior Divison), Rudraprayag & another; reported in 2009 SCC OnLine Utt 668.

6. Having heard the learned counsel for the parties and after perusal of material available on record and going through the judgment supplied by the learned counsel for the parties, this Court is of the considered opinion that it is a settled proposition of law that the Executing Court cannot travel beyond the decree and if this petition is allowed, it will lead to opening of a Pandoras box. The reasoning given by the learned revisional court is quite convincing that possession after the passing of prohibitory injunction ensues a new cause of action and a new suit will lie and the Executing Court becomes Functus officio for the said matter. My view is further supported by the judgment of Co-ordinate Bench of this Court given in the case of Baisakhu Lal (Supra). Para 5 of the said judgment is quoted hereinbelow:- “(5) It is settled principle of law that an executing court cannot go beyond parameters of the decree. The decree was simply for a prohibitory injunction. If the judgment debtor had taken possession of the land 4 after the decree was passed, it was a new cause of action to the plaintiff who could have instituted suit for possession. In execution of a decree for prohibitory injunction, the trial court has committed a grave error of law in issuing writ of possession to deliver the possession of land to the plaintiff/decree holder, who had filed a suit and obtained decree simply for prohibitory injunction.”

7. The judgments supplied by the learned counsel for the petitioners are of no help to him as the facts are entirely different from the present case in hand as those cases only opine of removing certain hindrance which were coming in way of executing the decree.

8. Accordingly, the writ petition lacks merit and is hereby dismissed.

9. Interim order, if any, also stands vacated.

10. Pending application, if any, stands disposed of. AK (Pankaj Purohit, J.)

18.11.2025 5