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Bhima Das Vs. Ganeswar Mahapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 67 of 1979
Judge
Reported inAIR1984Ori229; 57(1984)CLT142; 1984(I)OLR129
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2); Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 47 - Order 21, Rule 32
AppellantBhima Das
RespondentGaneswar Mahapatra and ors.
Appellant AdvocateN.C. Pati, Adv.
Respondent AdvocateK.C. Jagadeb Ray, Adv.
Cases ReferredShivdhari Gope v. Anant Poddar
Excerpt:
.....india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - he, therefore, directed that the structures standing on the two plots obstructing the passage of the decree-holder should be demolished and if the judgment-debtor failed to demolish the same within a month then the decree-holder would be at liberty to dismantle the same at the cost of judgment-debtor......judge, bargarh, in misc. appeal no. 9 of 1975. 2. in title suit no. 98 of 1955, plaintiff-decree-holder had obtained a decree of injunction against the appellant-judgment-debtor in respect of hamid settlement plot nos. 2393 and 2395 and the judgment-debtor had been restrained not to obstruct the passage over these two plots. the decree also contained a mandatory direction. the said decree was executed on 15-7-1956 and the obstruction had been removed by the judgment-debtor. subsequently on the allegation that judgment-debtor again obstructed the passage and thereby violated the order of injunction which had been granted under the decree, the decree-holder initiated the execution proceeding on 16-5-1969 invoking the provisions of order 21, rule 32, civil p. c. the judgment-debtor.....
Judgment:

G.B. Patnaik, J.

1. Judgment-debtor in an execution proceeding is the appellant challenging the order of the Subordinate Judge, Bargarh, in Misc. Appeal No. 9 of 1975.

2. In Title Suit No. 98 of 1955, plaintiff-decree-holder had obtained a decree of injunction against the appellant-judgment-debtor in respect of Hamid Settlement Plot Nos. 2393 and 2395 and the judgment-debtor had been restrained not to obstruct the passage over these two plots. The decree also contained a mandatory direction. The said decree was executed on 15-7-1956 and the obstruction had been removed by the judgment-debtor. Subsequently on the allegation that judgment-debtor again obstructed the passage and thereby violated the order of injunction which had been granted under the decree, the decree-holder initiated the execution proceeding on 16-5-1969 invoking the provisions of Order 21, Rule 32, Civil P. C. The judgment-debtor filed an objection purporting to be one under Section 47, Civil P. C. which was registered as Misc. Case No. 53 of 1970. The learned Munsif by order dt. 8-8-1975 came to hold that the judgment-debtor had violated the order of injunction and rejected the objections filed on behalf of the judgment-debtor. He, therefore, directed that the structures standing on the two plots obstructing the passage of the decree-holder should be demolished and if the judgment-debtor failed to demolish the same within a month then the decree-holder would be at liberty to dismantle the same at the cost of judgment-debtor. He further ordered that the judgment-debtor should be committed to civil prison for a period of seven days for having violated the order of injunction. Against this order, the judgment-debtor carried an appeal and the learned Subordinate Judge who heard the appeal dismissed the same holding that the appeal was not maintainable in view of the amended provisions of the Civil P. C. whereunder an order passed on an objection under Section 47 is not a decree.

3. The order that was challenged in appeal before the Subordinate Judge is dated 8-8-1975 and the appeal itself had been filed prior to the amendment to Section 2(2) of the Civil P. C., by Amending Act 104 of 1976, which came into force on 1-2-1977. In that view of the matter the learned Subordinate Judge was not right in holding that the appeal was not maintainable. Mr. Jagadeb Ray, the learned counsel appearing, for the respondents, also fairly conceded this position.

4. Mr. Jagadeb Ray, however, contended that an order passed under Order 21, Rule 22 (32?), of Civil R C. was not an order adjudicating the rights of the parties and Section 47 of the Code would have no application in such a case and, therefore, the order would not be appealable. He further submitted that an order of arrest or detention in execution of a decree was not appealable as specifically provided under Section 104(1)(h) of the Code. This contention, in my view, is not tenable in law. A bare look at the provision of Order 21, Rule 32, Civil P. C, shows that the same is intended for enforcement of the decree and all questions arising between the parties relating to execution, discharge or satisfaction of the decree come within the ambit of Section 47 of the Code. In that view of the matter, the contention of Mr. Jagadeb Ray has no force. Besides, a Bench decision of the Patna High Court in the case of Shivdhari Gope v. Anant Poddar AIR 1971 Pat 121, is directly on the point, where their Lordships have held that an application under Order 21, Rule 32 is an application relating to execution of a decree. In the result, therefore, I set aside the judgment of the Subordinate Judge in Miscellaneous Appeal No. 9 of 1975 and remand the matter to him for re-disposal of the same in accordance with law. Both sides, however, are directed to bear their respective costs in this appeal.


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