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Venkat S/O Niloba Kabade Vs. Kishan S/O Dadarao Dhumal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 256 of 1983
Judge
Reported in1984(1)BomCR74; 1983MhLJ1105
ActsCode of Civil Procedure (CPC) , 1908 - Sections 36 - Order 21, Rule 35(5)
AppellantVenkat S/O Niloba Kabade
RespondentKishan S/O Dadarao Dhumal
Appellant AdvocateB.M. Agarwal, Adv.
Respondent AdvocateB.N. Bajpai, Adv.
DispositionApplication dismissed
Excerpt:
civil - execution of decree - section 36 and order 21 rule 35 (5) of code of civil procedure, 1908 - plaintiff filed suit against defendant for declaration of ownership and perpetual injunction in respect of suit-property - court granted decree in favour of plaintiff - plaintiff filed application for execution of decree - order of issuing process-warrant challenged in revision petition - order 21 rule 35 and section 36 lays down procedure for execution of decrees for possession - held, no error in order of trial court. - .....that is open to the plaintiff is under order 39, rule 2(4) read with order 21, rule 32(1) of the civil procedure code. it was urged by mr. agarwal that the plaintiff can have can resort to the relief against the defendant either for attachment of the moveable property or for putting the defendant in jail. it was urged further by mr. agarwal that even such a request is made by the plaintiff to the trial court and that matter is pending for orders. i am now told at the bar that the orders was are passed against the petitioner and appeal is pending against the said orders. according to mr. agarwal, a warrant for possession cannot be issued by the trial court. he placed reliance upon a full bench decision of the delhi high court in sarup singh v. daryodhan singh, : air1972delhi142 . it.....
Judgment:

D.B. Deshpande, J.

1. In a suit filed by the plaintiff-respondent against the defendant-petitioner for declaration of his ownership and for perpetual injunction in respect of the suit-property including one godown which is in a portion of the suit-property the trial Court passed the following order below Exh. 51 in Regular Civil Suit No. 328/81 on its file and the order is as follows :---

'The application of plaintiff Exh. 51 is allowed. By issuing mandatory injunction the plaintiff be restored with possession of disputed godown on the ground floor of the suit-house.....'

I have reproduced the portion relevant for our purpose. This order was passed on 8th October, 1982. Thereafter, the plaintiff gave another application (Exh. 67) in the trial Court on 14th February, 1983. By this application the plaintiff prayed that process be kindly issued to execute the mandatory injunction through the bailiff of the Honourable Court directing the bailiff to deliver vacant possession of the godown to the plaintiff by removing all the belongings of the defendant from that godown. Below this application the trial Court passed the following order :---

'Heard Advocate for the plaintiff. Issue mandatory injunction directing defendant to deliver possession within 24 hours of the receipt of order at the first instance. If the defendant fails to comply with the order, possession warrant be issued.'

This order was passed by the trail Court on 16th February, 1983 and this order of issuing possession-warrant is being challenged in this revision application on behalf of the defendant-petitioner.

2. Mr. B.M. Agarwal, appearing on behalf of the petitioner, urged before me that the only remedy that is open to the plaintiff is under Order 39, Rule 2(4) read with Order 21, Rule 32(1) of the Civil Procedure Code. It was urged by Mr. Agarwal that the plaintiff can have can resort to the relief against the defendant either for attachment of the moveable property or for putting the defendant in jail. It was urged further by Mr. Agarwal that even such a request is made by the plaintiff to the trial Court and that matter is pending for orders. I am now told at the Bar that the orders was are passed against the petitioner and appeal is pending against the said orders. According to Mr. Agarwal, a warrant for possession cannot be issued by the trial Court. He placed reliance upon a Full Bench Decision of the Delhi High Court in Sarup Singh v. Daryodhan Singh, : AIR1972Delhi142 . It must be remembered that this is a decision prior to the overhauling of the Civil Procedure Code by the Act No. 104/76. By this Amendment section 36 of the Civil Procedure Code is amended and it runs as follows :---

'36 The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).'

This section is replaced by the Amending Act No. 104/76. It will, therefore, be seen that by virtue of the substitution of this section even the orders of the Court can be executed and the provision of the Civil Procedure Code relating to the execution of decree are made applicable for execution of such orders. Mr. Agarwal further placed reliance upon a recent decision of the Allahabad High Court in Smt. Indu Tewari v. Ram Bahadur Chaudhari and others A.I.R. 1981 All 399. The question before the Allahabad High Court was whether when there is a remedy open for breach of injunction, whether recourse can be had to the proceeding under Contempt of Courts Act and the Allahabad High Court held that action under the Contempt of Courts Act cannot be taken by skipping over the remedies provided in Order 39, Rule 2(A) and Order 21, Rule 32 of the Civil Procedure Code for breach of injunction. Hence, this ruling is also not applicable to the facts of the instant case.

3. Now, it cannot be disputed that Order 21, Rule 35 of the Civil Procedure Code lays down the procedure for execution of decrees for possession. Now, by virtue of section 36 of the Amended Civil Procedure Code the same procedure will be applicable for the execution of orders and I have already reproduced the order of the Court below Exh. 51. As against this Mr. B.N. Bajpai, appearing for the respondent, relied upon two authorities. One is Evuru Venkata Subbayya v. Srishti Veerayya and others, : AIR1969AP92 . He placed reliance upon Head Note (D). I do not think that this head note is applicable to the facts of the instant case. All that is laid down in this ruling is that the provisions of sub-rule (5) of Rule 32 of Order 21 of Civil Procedure Code are applicable only to mandatory injunction and not to the other injunctions. There is nothing, in this ruling, which is relevant for our consideration in this revision application. Then he placed reliance upon a decision of the Nagpur High Court in Ajabrao Damajee v. Atmaram Sadasheorao and others A.I.R. 1954 Nag 245. This ruling is also not applicable to the facts of the instant case. It appears from this ruling that possession was obtained under a decree for possession and perpetual injunction. It appears that there was fresh dispossession by the same defendant and the question came up before the Nagpur High Court in this background. I do not think that it has any relevance to the facts of instant case. In addition to this, Mr. Bajpai placed reliance upon sub-rule (5) of Rule 32 of Order 21 of the Civil Procedure Code and it rune as follows :---

'(5) Where a decree for the specific performance of contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.'

According to Mr. Bajpai, the remedy in sub-rule (5) is in addition to the remedies provided for the decree-holder in the other provisions of this very Rule and those other provisions are for detention in civil prison. Definitely there is some force in his submission. Even otherwise I have pointed out earlier that even interim orders of the Court can be executed in view of the clear provisions of section 36 of the Civil Procedure Code and in this view of the matter I do not find any error in the order of the trial Court.

4. The revision application deserved to be dismissed and it is accordingly dismissed. Rule discharged but in the circumstances there will be no order as to costs. However, on the request of Mr. Agarwal the petitioner is given two months time from today to hand over vacant possession failing which possession-warrant may be issued.

Mr. Agarwal requested leave to appeal to the Supreme Court and it is rejected.


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