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Harihar Pandey Vs. Mangala Prasad Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 1696 of 1976
Judge
Reported inAIR1986All9
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 32 - Order 23, Rule 3; ;Limitation Act, 1963 - Schedule - Article 135; General Clauses Act, 1897 - Sections 3(2)
AppellantHarihar Pandey
RespondentMangala Prasad Singh and ors.
Appellant AdvocateNamwar Singh, Adv.
Respondent AdvocateSankatha Rai, Adv.
Excerpt:
.....obtained. (ii) decreed suit - order 21 rule 32 of code of civil procedure, 1908 - only order of decree in injunction suit - injunction implied as granted. (iii) prohibitory and mandatory injunctions - order 21 rule 32 of the code of civil procedure, 1908 and article 135 of limitation act, 1963 - both prohibitory as well as mandatory injunctions in decree - only mandatory injunction barred by limitation. - - this could, at best, be a solemn declaration by thedefendant to keep no more than eight openings, which was not the same thing as granting an injunction. such a decree is clearly executable under rule 32 of order 21 c. on the contrary, it is sometimes felt that they had much more to gain by disobeying the decree than in obeying it this impression must be erased, the earlier the..........section 11 c.p.c. where the matter is required to be 'heard and decided' by the court since in a compromise decree there is no element of hearing by the court the supreme court had taken the said view. that principle, however, cannot be extended to the facts of the case before me. i am not impressed by this submission at all and hold that the decree although based on a compromise, cannot be rendered inexecutable for this reason alone.6. for his other submissions that promise of providing the alternative passage was merely capable of being enforced by a separate suit and not by execution of this decree he seeks support from a decision of the calcutta high court in hem chandra naskar v. narendra nath bose : air1934cal402 . in that case, the parties had their fields along the opposite.....
Judgment:

N.N. Mithal, J.

1. This execution second appeal has been filed at the instance of the judgment-debtor against an order dismissing his objections under Section 47 C.P.C. whereby removal of certain construction raised by him in violation of the decree has been ordered, The appellant has raised several questions of law.

2. In order to appreciate appellant's submission the necessary facts need be grasped first. The parties own adjoining land with a passage running from west to east between their properties. When the defendant started raising construction over his land the plaintiff apprehended obstruction to his passage. Consequently the suit was filed. The plaintiff secured an interim injunction restraining any further construction activity. Within two months of this order the parties filed a compromise petition and in terms thereof a decree was passed making the compromise petition as part of the decree. This petition consists of three parts. Para 'Ka' is a sort of preamble to the dispute and the properties are described therein with reference to the Commissioner's map. Its contents are not relevant for our present purposes. According to para 'Kha' the defendant, in lieu of the existing passage, offered an alternative passage to the plaintiffs running south-north towards West of defendant's Dalan, then turning towards East, near the North-Eastern corner of the Dalan having a regular width of 8' throughout. Defendant also agreed to remove bamboo clumps standing towards the West of his Dalan and to level up the passage. The defendant further undertook not to cause any obstruction in its use even in future. A period of two months was fixed for doing all this failing which the plaintiff could enforce it by executing the decree. The last clause 'Ga' empowered the plaintiff to revert to their old 8' wide passage if the alternative Rasta was not provided for any reason whatsoever.

3. After nearly ten years of this decree the plaintiff applied for enforcing the decree by(i) attachment of the offending constructions, (ii) for removal of bamboo clumps, (iii) for detention of the defendant in civil prison and for providing the alternative passage after removal of Ghoor and Nand raised at the eastern and southern ends which obstructed the passage. In this manner the decree-holder sought execution of the decree both in prohibitory and mandatory forms. The executability of the decree has been assailed on several grounds, which I propose to deal hereafter.

4. The firsr submission is that a decree based on a compromise is in fact no more than an agreement which merely declares the respective rights of the parties and by its very nature was not capable of execution.

5. In this connection reference that has been made to Amar Singh v. Custodian. Evacuee Property, Punjab : [1957]1SCR801 does not appear to be really justified. In that case a decree based on a compromise was held to be nothing more than an agreement of the parties with court's seal put thereon. But there the court was considering the compromise for the purpose of applying Section 11 C.P.C. where the matter is required to be 'heard and decided' by the court Since in a compromise decree there is no element of hearing by the court the Supreme Court had taken the said view. That principle, however, cannot be extended to the facts of the case before me. I am not impressed by this submission at all and hold that the decree although based on a compromise, cannot be rendered inexecutable for this reason alone.

6. For his other submissions that promise of providing the alternative passage was merely capable of being enforced by a separate suit and not by execution of this decree he seeks support from a decision of the Calcutta High Court in Hem Chandra Naskar v. Narendra Nath Bose : AIR1934Cal402 . In that case, the parties had their fields along the opposite banks of a river. The plaintiff used to draw water for their fisheries from the river through aqueducts. When defendants also made 32 such ducts on the opposite side for their fisheries the reduction in water adversely affected the plaintiff. A suit for injunction resulted in a compromise decree whereby the defendant agreed to close all but eight of thedisputed openings and this was enforceable by execution. The. defendants complied by closing all the extra openings leaving only eight Later on the defendants again opened some additional waterways on his side the plaintiff enforced their closure in execution. The decree was held to be merely declaratory which was not executable. It was held that the latter part of the compromise neither granted an injunction nor could it be executed. This could, at best, be a solemn declaration by thedefendant to keep no more than eight openings, which was not the same thing as granting an injunction.

7. Whether a compromise decree grants an injunction or not must always depend on the facts of each case and no general or inflexible rule can be laid down. The court must gather the intention of the parties from the surrounding circumstances and the language of the compromise petition. Drawing support from the reasoning adopted in : AIR1934Cal402 case (supra) it is urged that the compromise in the instant case also does not grant any injunctions either mandatory or prohibitory.

8. A decree is a formal expression of an adjudication that conclusively determines the rights of the parties as respects the matter in controversy. However, this adjudication of rights may take place after contest, and also by consent i.e under a compromise.

9. It is urged that under the compromise petition injunction was not specifically granted but is that really necessary? Where in an injunction suit the decree merely says that the suit be decreed, can it be said that it grants no injunction? In such a case the decree must be correlated to the relief claimed in the plaint Similarly where the parties agree to a future mode of conduct either by doing something or by refraining to do some act and obtain a decree in those terms this may, in appropriate cases, amount to self inducted injunction against one's self. There cannot be any real difference in an injunction granted by the court after adjudication of the rights and a self invited injunction under a compromise decree. However, what one has to look for in such a case is to search for the real intent of the parties. If the prohibitions and/or positive mandates mentioned in the compromise toregulate their future mode of conduct were intended to be enforced as injunction then, notwithstanding the fact that no injunction is specifically granted under the decree, it must be held to be one for injunction. For doing so the court must only delve deeper in order to discover the true intent of the parties and that alone must be given effect to. In such cases, too strict an interpretation of the compromise petition must not be attempted and an allowance must always be made for infirmity of expression in the compromise petition.

10. Viewed in this light in clause 'Kha' the defendants under took to give an alternative passage and also to do something to make it usable. They also agreed to desist from obstructing it in any manner. In my view this is not a mere declaratory decree but in substance grants injunction by agreement, though not after adjudication of rights by the court. Such a decree is clearly executable under Rule 32 of Order 21 C.P.C. This can make no difference because in either case an injunction is intended although in the case of adjudication by court, the plaintiff prays for it and the court awards it while, in a compromise decree, the court grants it on a joint request of the parties themselves. A careful consideration of the compromise petitions leaves no room for doubt in my mind that the parties had intended that injunction in terms thereof ought to be granted. The decree is, therefore, executable under Order 21 Rule 32 C.P.C.

11. It is also urged that limitation for launching execution proceedings is only three years in the case Of mandatory injunction under Art 135 of the Limitation Act, 1963 while it is 12 years in the case of any other injunction. It is, therefore, urged that in this case the injunction of the two kinds being inseparable the entire decree had become inexecutable due to bar of limitation. A reading of the compromise, however, will show that the decree was mandatory only where it related to providing the alternative way and removing the bamboo clumps while the rest was prohibitory.

12. In this case it is not at all difficult to separate the parts of the decree in so far as it relates to prohibitory and mandatory injunctions. The submission of the appellant to the contrary has no substance. Thus onlyso much of the decree as grants mandatory injunction would be barred by limitation and for the rest the execution can proceed.

13. It is next urged that a decree for prohibitory injunction could be executed in terms of Rule 32(1) to (3) only and recourse to Rule 32(5) was excluded. Relying on the Calcutta case : AIR1934Cal402 (supra) it is submitted that for enforcing compliance of a decree for prohibitory injunction Sub-ruless (1), (2) and (3) provide enough penal consequences to secure submission to the decree and procedure under Sub-section (5) can be employed only for enforcing a decree for mandatory injunction. According to the appellant even J.D.'s persistent defiance can only be met by filing a fresh suit for undoing whatever was done by him in violation of the decree. I find it difficult to prescribe to this view. Apart from the fact that what was regarded as sufficiently penal or harsh until yesterday for enforcing compliance by the offending judgment-debtor, it has lost much of its efficacy today. Mere attachment of the property or even committing him to civil prison may now hardly, if ever, cause as much as a ripple for there is no longer a sense of remorse or social stigma attached on account of such action. All this erosion of values has taken place due to weakening of the social fabric and the ever dwindling standards of social morality. Excessive tolerance displayed by the courts towards erring judgment-debtors has also contributed great deal in creating misplaced impression that disobedience of decree is seldom visited by serious consequences. On the contrary, it is sometimes felt that they had much more to gain by disobeying the decree than in obeying it This impression must be erased, the earlier the better.

14. The Calcutta High Court in that case disagreeing with its own earlier decision in Sachi Pd. Mukherji v. Amar Nath Rai Chowdhary AIR 1919 Cal 674 preferred to rely on a Allahabad decision in Gordhan Lalji v. Maksoodan Ballabh AIR 1918 All 152. In this case the court strongly disapproved the appointment of a police officer to ensure that the decree for performing Shingar and Arti in the temple was carried out Nothing was said in the judgment that the decree could not be executed under Sub-rule (5) which was basedmainly on the utter impropriety of the mode by which the decree was directed to be enforced.

15. Rule 32 of Order 21 of the Code relates to execution of decrees for (i) specific performance, for (ii) restitution of conjugal rights or for (iii) an injunction. Sub-clauses (i) & (ii) of the rule deal with the manner in which such a decree may be enforced. Sub-clause (5) is relevant for our purposes. It reads as under :

'32. Decree for specific performance for restitution of conjugal rights or for injunction.-- (1) Where the party against whom a decree for the specific performance of the contract, or for restitution of conjugal rights or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or in the case of a decree for the specific performance of the contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under Sub-rule (1) or Sub-rule (2) had remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end, of six months from the date of the attachment, no application to have theproperty sold has been made, or if made has been refused, the attachment shall cease.

(5) When a decree for the specific performance of the 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 costs 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.'

16. The various clauses of Rule 32 i.e. 1, 2 and 3 are but indirect methods devised to enforce compliance of injunction decrees each being an intermediate step for further action. From this we cannot, however conclude that execution of decree for prohibitory injunction should end there. When the judgment-debtor commits gross violation of the decree so as to nullify the very decree the execution cannot be so limited and the decree-holder driven to file a fresh suit. Such an interpretation cannot be entertained and would be taking rather a too technical and narrow view of the matter. The law has always expressed its dislike for multiplicity of proceedings and has leaned in favour of an interpretation which would prevent multiplicity of proceedings rather than the one which will generate it.

17. The significant words used there are 'the court may' in lieu of or in addition to all or any of the processes aforesaid i.e. attachment of property or detention in civil prison. This expression enlarges the scope of authority of the court to execute the decree in the manner provided in Sub-rule (1) or (2) and also under Sub-rule (5). The rule empowers the court to 'direct that the act required to be done' may be done so far as practicable by the decree-holder etc. What some courts have interpreted is that the term 'act required to be done' only refers to a mandated act under the decree. This narrow meaning, in my view, cannot be assigned to this term for the act referred to may relate to the one for which decree for specific performance had been granted or to any other act also the performance of which may be essential for enforcing the decree.

18. We must now examine as to whatprevents the court from executing the decree for prohibitory injunction under Sub-rule (5)? According to some High Courts the expression 'an act required to be done' limits its use only to mandatory decree. 'An act required to be done' cannot necessarily mean a positive act only and may also include acts which one is precluded from doing by the decree. When a decree restrains a party from doing a particular act it must imply that he shall not act in a manner so as to cause the very act to be done or performed which he was precluded from doing. He must not allow himself to become an instrument for disobeying the injunction and must avoid doing any thing that may cause its infringement.

19. The word 'Act' according to the definition given in Section 3(2) of the General Clauses Act means as under :

'The term 'act' when used with reference to an offence or civil wrong shall include a series of acts. Moreover, the words which refer to acts done shall also extend to illegal omission'.

When the defendants agree to desist from causing any obstruction to the alternative passage they voluntarily invited such an injunction against themselves and to remain bound by it. By making the 'Nand' or 'Ghoor' at its two ends they cannot do what they were to specifically desist from. Any such violation, which cannot restore the status quo ante, by taking proceedings under Sub-rules (1) to (3) must be met by action taken under Sub-rule (5) to provide effective relief to the decree-holder instead of driving him to a fresh series of litigation. The rules are merely a device to achieve an objective, i.c. to enforce the decree granted to a party and must not be allowed to be frustrated by any kind of high-handedness displayed by the party bound by it In my view, therefore, there is nothing in Order XXI Rule 32 C.P.C. to prevent execution of the decree for prohibitory injunction also, in appropriate cases of course, under Sub-rule (5) thereof. Causing of obstruction to the passage by judgment-debtors was in clear violation of the decree. The decree-holder had the right to either have him sent to civil prison or to proceed under Sub-rule (5) without first resorting to Sub-clause (1) or (2).

20. There may be cases where despite proceeding under Sub-rules (1) to (3) the judgment-debtor may fail to obey the decree. What would be the decree-holder's remedy then? In my view the answer to this is Sub-rule (5) which provides for the remedy that may be availed of initially or subsequently. The question in the present case relates to removal of Ghoor and Nand which, according to the appellant, was not 'an act required to be done' by the judgment-debtor under the decree. As I have said earlier 'act' means an omission also. When the decree prohibited him from causing any obstruction to the passage it implied keeping the way free of obstructions but by acting in the manner that he has, this has been infringed. Any act as would cause an obstruction on the passage to be removed must be deemed to be an act 'required to be done' by the J. D. within the broader meaning of this term. Thus this could be directed to be done in execution of the decree for prohibitory injunction also in an appropriate case. The court had the power to execute the decree by getting the obstructions removed and obtaining a fresh decree for the purpose was not necessary.

21. In the end it is urged that to enable the decree-holder to execute such a decree he must first establish wilful disobedience on appellant's part i.e. that the decree had not been obeyed in spite of an opportunity to do so. There is force in the submission particularly because according to the appellant the D.H. had been using the old way as before in terms of clause 'Ga' of the decree and it stood fully satisfied. There is no doubt that the very right to execute such a decree depends on a finding of wilful disobedience on the pan of J.D. No such finding has been recorded by the court below despite specific plea that the plaintiff had not executed the decree for ten long years and since he was using the old passage this gave an impression to the J.D. that the decree stood satisfied in terms of clause '.Ga'. It has been repeatedly held that before proceeding to execute the decree the courts must record a finding that there has been wilful failure to obey the decree. See Abdul Latif Nomani v. Commr. Gorakhpu : AIR1968All44 Ramnath v. Smt. Tapesra : AIR1985All26 . In both these cases it has been stressed that the power to execute a decree under Rule 32 arises only when the court had recorded a finding ofwilful failure to obey the decree. I, therefore, find sufficient force in this argument and the order of the court below cannot be sustained to that extent

22. In view of what has been discussed above, it is held that the compromise decree was in terms both for prohibitory and mandatory injunctions and was capable of being executed under Sub-rule (5) of Rule 32 of Order XXI of the Code. Since court below has failed to record any finding on the point that the judgment-debtor had wilfully failed to obey the decree in spite of opportunity, the judgment under appeal, suffers from an obvious infirmity.

23. I would prefer to remit the questions left undecided by the court below instead of ordering remand as, in my opinion the matter is already too old. I order accordingly and remit the following two questions for finding to the lower appellate court

1. Whether the decree has been satisfied in terms of Clause 'Ga' of the compromise as contended by the J.D.? Its effect on the execution proceedings?

2. Was there wilful failure to obey the decree by the J.D.? If not, its effect?

Parties will be entitled to lead necessary additional evidence, both oral and documentary, on these questions only and, if necessary may also be permitted to cross-examine the parties on their sworn affidavits already on the record. The findings shall be returned within three months from the date of receipt of the record by the court below. The record shall be sent down within two weeks and the office will ensure that the appeal is listed for hearing immediately after receipt of the findings.


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