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Sarup Singh Vs. Daryodhan Singh - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 151 of 1970 , against order of R.L. Gupta, Sub-J., Delhi, D/- 24-10-1969
Judge
Reported inAIR1972Delhi142; 1971RLR89
ActsCode of Civil Procedure (CPC),1908- Order 21, Rule 35
AppellantSarup Singh
RespondentDaryodhan Singh
Appellant Advocate Manjit Singh, Adv.
Respondent Advocate Charanjit Singh, Adv.
Cases ReferredNawab Singh v. Mithu Lal
Excerpt:
.....of seven days, but the decree has remained unsatisfied. 5. the learned counsel for the respondent-decree-holder has urged that it was perfectly in accordance with law on his part to institute a suit for mandatory injunction against a licensee and the decree granting the mandatory injunction to quit has become final and it is the duty of the court to effectively execute it. or (e) in such other manner as the nature of the relief granted may require :x x x x x x x x x x x x 'order xxi, rule 32, decree for specific performance for restitution of conjugal rights, or for an injunction -(1) where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree..........(5) of rule 32 and they are certainly some of the acts which it is practicable to be done by the decreeholder or some other person appointed by the court without the will of the judgment-debtor. but dispossession of the judgment-debtor, without a direction for delivery of possession of the property to the decree-holder contained in the decree, does not authorise the use of powers under rule 35. the analogy of a decree for specific performance of contract is, thereforee, misplaced and does not govern the decree for injunction.12. as observed by the high court of calcutta in hem chandra naskar v. narendra nath bose : air1934cal402 and by the high court of allahabad in nawab singh v. mithu lal : air1935all480 : air1935all480 , a decree for mandatory injunction as well as for preventive.....
Judgment:

B.C. Misra, J.

1. This revision petition has been filed under Section 115 of the Code of Civil Procedure by the defendant judgment-debtor and is directed against the order of the Subordinate Judge 1st Class, Delhi, dated 24th October, 1969 by which the learned judge has ordered the issue of a warrant for delivery of possession of immovable property in execution of a decree for mandatory injunction. The question raised in the revision is whether the issue of such a warrant in the circumstances of the case was within the jurisdiction of the Court, and this question was considered to be of sufficient importance by one of us and has been referred to the Full Bench for decision.

2. The material facts of the case are that the respondent is the landlord (though not the owner) of the piece of land in dispute situated at Jhande Walan, Paharganj, Delhi, where a workshop containing a motor machinery with electric power owned by the respondent has been installed. It appears that the respondent gave a license to the petitioner to use the said workshop for a consideration of Rupees 100/- per month which was subsequently revoked. On 6th September, 1967, the respondent filed a suit against the petitioner for a mandatory injunction directing the petitioner to quit and vacate the workshop in dispute. The dispute was decreed by the trial Court on 15th May, 1968 and the decree passed has become final as the first appeal against the same was dismissed by the Senior Subordinate Judge and the second appeal (No. 45 of 1969) was dismissed by the High Court (I.D. Duta, C.J., as his Lordship then was) on 15th May, 1969.

3. After the passing of the decree, the respondent took out execution and in pursuance of the same, the petitioner judgment-debtor was committed to civil prison for a period of seven days, but the decree has remained unsatisfied. Thereafter the respondent on 7th November, 1968 moved an application which has given rise to the present revision and prayed that a warrant for delivery of possession of the workshop in dispute to the respondent-decree-holder be issued under Rule 35 of Order Xxi read with clause (5) of Rule 32 of Order Xxi and Section 151 of the Code of Civil Procedure. The execution Court, by the impugned order, ordered the issue of the warrant, aggrieved by which the judgment-debtor- petitioner has filed the revision.

4. The learned counsel for the petitioner-judgment-debtor has contended that the respondent had taken the risk of instituting a suit only for mandatory injunction to quit instead of the usual suit for recovery of possession on payment of court-fees on the market value of the property according to law and having obtained the decree for injunction, the decree-holder-rt. Is entitled to execute the decree only in accordance with the procedure prescribed by order Xxi, Rule 32 of the Code and he cannot be allowed to invoke the aid of the Court to issue a warrant for possession provided by Rule 35 of Order Xxi and that on the plain reading of the statutory provisions, the order of the Court below is without jurisdiction.

5. The learned counsel for the respondent-decree-holder has urged that it was perfectly in accordance with law on his part to institute a suit for mandatory injunction against a licensee and the decree granting the mandatory injunction to quit has become final and it is the duty of the Court to effectively execute it. He has urged that under sub-rule (5) of Rule 32 of Order Xxi of the Code, the decree-holder has a right to pray to the Court to do, at the expense of the judgment-debtor, what he was directed to do by the decree and this would include the use of the powers and procedure prescribed by Rule 35 and a warrant for delivery of possession, or at all events, a warrant directing use of force against the judgment-debtor to quit and vacate can be issued, even though delivery of possession to the decree-holder be not envisaged or possible under the terms of the decree. The counsel has vehemently urged that the judgment-debtor cannot be allowed to remain in possession of the property in dispute in disobedience of the decree of the Court and the execution Court is not powerless to devise procedure and grant relief under clause (e) of Section 51 of the Code to the decree-holder to dispossess the judgment-debtor in the circumstances of the case.

In this case, we are not expressing any opinion on the legality or validity of a decree granting injunction to quit and vacate any premises passed in suit for injunction instead of a suit for recovery of possession. The decree in this case has become final and we are accepting it as such and proceed to determine whether a warrant for delivery of possession under Rule 35 can be issued in execution of the decree for injunction to vacate. The relevant provisions of law may, for the sake of convenience, be here reproduced :-

'51 Powers of Court to enforce execution :- Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree -

(a) by delivery of any property specifically decreed.

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require :-

X X X X X X X X X X X X 'Order Xxi, Rule 32, Decree for specific performance for restitution of conjugal rights, or for an injunction - (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully 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 a contract, or for an injunction by his detention in the civil prison, 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 of other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year, 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 one year form the date of the attachment, no application to have the property sold has been made, or if made has been refused. the attachment shall cease.

(5) Where a decree for the specific performance of a 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.

Order Xxi, Rule 35 Decree for immovable property. (1) where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive 'delivery on his behalf, and, if necessary by removing any person bound by the decree who refuses to vacate the property.'

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivery by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.'

A perusal of the statutory provisions would show that a decree for injunction is normally to be executed by detaining the judgment-debtor in civil prison or by attachment of his property or both and ordinarily there two coercive measures would constitute an effective remedy to compel the judgment-debtor to obey the decree or order of the Court, but in this case, the judgment-debtor has failed to vacate the premises in spite of having suffered detention in prison for a weed. There is no impediment o further exercise of punitive powers under sub-rules (1) and relies on sub-rule (5).

6. Sub-rule (5) of Rule 32, under which the decree-holder seeks relief, authorises the Court to 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. The statutory illustration illustrates the scope of the rule by instance that where person of little substance erects a building which renders a family mansion uninhabitable and the judgment-debtor, in spite of his detention in prison and attachment of property, declines to obey the decree the Court may remove the building which the decree has directed to do and may recover the cost from the judgment-debtor in execution proceedings. This shows that the act which is authorised by sub-rule (5) to be done consists of something which may be done so far as practicable by the decree-holder himself at the expense of the judgment-debtor to quit and vacate the premises cannot, constitute an act which may, without the will and volition of the judgment-debtor, be done by the decree-holder.

Obviously, the decree-holder cannot vacate the premises in place of judgment-debtor and deliver its possession to himself and recover its costs. Reference may also be made to the distinction in the language of sub-rule (3) of Rule 35 and of sub-rule (5) of Rule 32; while in the former the possession is to be delivered through its officers, in the latter the act is to be done by the decree-holder or by (and not through) another person. Consequently, obedience of the injunction to vacate cannot be done by any officer or other person appointed by the Court as well.

7. As such, the conclusion is inevitable that sub-rule (5) of Rule 32 can, in the nature of things, not come to the aid of the decree-holder to obtain dispossession of the judgment-debtor and it would be impossible to convert a suit and a decree for injunction into a suit and decree for recovery of possession and afford consequential relief in the execution department.

8. The next question for consideration is whether as urged by the respondent a warrant for possession can specifically be issued under Rule 35 in aid of obtaining compliance with the decree for mandatory injunction. The opening words of Rule 35 and (are?) 'Where a decree is for the delivery of any immovable property possession thereof shall be delivered to the party to whom it has been adjudged * * * * * by removing any person bound by the decree who refuses to vacate the property.' Sub-rule (3) of Rule 35 further makes provision for removing or breading open any lock, bolt or door and performing other acts necessary for putting the decree-holder in possession. The decree passed in this case is plainly not for delivery of possession, nor has the decree-holder been adjudged as entitled to receive the possession and as such the provision of Rule 35 of Order Xxi are not attracted. The from of the decree for possession as well as the form of warrant of possession respectively prescribed in Forum 23 of Appendix D and Form 11 of Appendix E unmistakably show that the decree must direct the defendant to put the plaintiff in possession of the property and then the warrant which is issued to the bailiff of the Court. Commands him to put the plaintiff in possession of the property in dispute by removing the defendant-judgment-debtor who may refuse to vacate the same.

They further illustrate that Rule 35 is wholly inapplicable for the purpose of executing a decree for injunction which is directed against the person of the judgment-debtor and appeals to his will and volition. The counsel for he respondent has submitted that although the decree in this case is not for delivery of possession to the decree-holder, part of the powers conferred under Rule 35 to dispossess the judgment-debtor may be exercised by the Court and then after removal of the judgment-debtor, the property may be left unattended, leaving it to the decree-holder to get into its occupation if he can. The submission is far-fetched and no provision of the Code of Civil Procedure justifies such a step. Ordinarily the Court has no jurisdiction to dispossess a person and leave the property in the vacuum and it exercises powers of enforcing dispossession only to put some other person whom the Court so adjudges to be entitled to be in possession and not otherwise.

9. The learned counsel for the respondent has lastly urged that the Court cannot allow its decree to be disobeyed contumaciously and it must device some procedure under Clause (e) of Section 51 of the Code and in exercise of the said power, the execution Court must use force to compel the judgment-debtor to vacate the premises. Clause (e) contains a residuary provision which comes into play where the decree in question cannot be executed according to clauses (a) to (d) or any other provision of law. Section 51 itself begins with the qualifying phrase 'subject to such conditions and limitation' as may be prescribed, that is to say prescribed by statutory rules of the Code as defined by Section 2. This clause came up for consideration before a Division Bench of the High Court of Punjab, Circuit Bench at Delhi in Murari Lal v. Nawal Kishore, , where S S. Dulat and D.K. Mahajan JJ.followed a Full Bench authority of the High Court of Allahabad, Anandi Lal v. Ram Sarup, : AIR1936All495 and observed that all the various modes mentioned in Section 51 were not open to an execution Court in every case and it was to be guided by the procedure laid down in the schedule and must resort to the method appropriate to each case and that a decree for mandatory injunction had to be executed by attachment and sale of the judgment-debtors property and by detention in civil prison as provided by Rule 32 (1) of Order Xxi of the Code and since this guide had been provided, no resort could be had to clause (e) of Section 51.

The Division Bench repelled the argument advanced before it that the decree would be rendered useless unless it was executed in accordance with sub-rule (5) and the Court observed that the decree had to be executed in accordance with Rule 32 (1) and merely because another mode of execution which was sought and was not available, would not render the decree useless. The counsel for the petitioner has also relied upon an authority of the Supreme Court in Municipal Corporation of Greater Bombay v. Lala Pancham, : [1965]1SCR542 , in support of the proposition that there are certain limitations which the law confers upon the powers of the Courts and it is duty of a Court of law not only to do justice but to ensure that justice is done only according to law and not otherwise. Reference may also be made to Arjun Singh v. Mohindra Kumar, : [1964]5SCR946 , where the Court observed that where there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or jurisdiction that may be exercised in relation to matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code; the prohibition contained in Code need not be express, but may be implied or be implicit from the very nature of things that it makes for covering the contingencies to which it relates.

10. Applying the dictum of the Supreme Court, it follows that a decree for injunction must be executed in the manner provided by Rule 32 and the issue of a warrant for delivery of possession in execution of a decree for injunction is not justified either by Rule 35 of Order Xxi of clause (e) of Section 51.

11. The learned counsel for the respondent has cited Kundanlal Nandkishore v. Ramcharan Deokaran, Air 1949 Nag 370 and Susamabala v. Profullamovee Debi, : AIR1951Cal402 in support of the proposition that a decree for specific performance of a contract may be executed in the manner provided by Rule 34 of O. Xxi or also by delivery of possession as provided by Rule 35 and the defendant may be ordered to deliver possession of the property. We are of the view that the analogy of contracts for specific performance is of no avail. The suit for specific performance of contracts of sale are a district class. Under Section 55 of the Transfer of Property Act, it is the duty of the seller to place the vendee in possession of the property under sale. The statutory forms of pleading in a suit for specific performance of contract are 47 and 48 of Appendix 'A' of the Code and paragraph 6 of form 47 reads that the plaintiff claims that the Court would order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in possession of the said property (or to accept a transfer and possession of the said property).

Paragraph 8 of the next following form 48 provides that the defendant do transfer the said property to the plaintiff by a sufficient instrument. It is obvious that execution of an instrument of transfer and delivery of possession of the property and the sale is an ingredient of an agreement for contract of sale and when the Court decrees its specific performance, all its terms are consequently enforced. Even otherwise. (sic) where thereof Order Xi prescribes a procedure for execution of a document and this can legitimately be adopted in a decree for specific performance of a contract for sale. Execution and registration of a document would also be covered by sub-rule (5) of Rule 32 and they are certainly some of the acts which it is practicable to be done by the decreeholder or some other person appointed by the Court without the will of the judgment-debtor. But dispossession of the judgment-debtor, without a direction for delivery of possession of the property to the decree-holder contained in the decree, does not authorise the use of powers under Rule 35. The analogy of a decree for specific performance of contract is, thereforee, misplaced and does not govern the decree for injunction.

12. As observed by the High Court of Calcutta in Hem Chandra Naskar v. Narendra Nath Bose : AIR1934Cal402 and by the High Court of Allahabad in Nawab Singh v. Mithu Lal : AIR1935All480 : AIR1935All480 , a decree for mandatory injunction as well as for preventive injunction are to be executed in accordance with Rule 32 of Order Xxi of the Code. We are not impressed by the vehement submission of the counsel for the respondent that the decree which had been obtained by him in this case has become useless or in executable. In fact, where a party is content to seek a decree for injunction rather than for delivery of possession in a suit property (properly?) framed for the purpose, he has to face its logical consequences and he can have the decree executed only in accordance with the provisions of law governing execution of decrees for injunction and he cannot employ the argument of frustration of his object existing behind his suit to obtain a relief from the Court which was not envisaged by the suit and not granted by the Court.

It is not open to a party to claim the use of the machinery of the execution department of the Court to seek any further or other relief for fulfillment of his object which is not permitted by law. We, thereforee hold that a decree for injunction granted in this case is it to be executed by the Court below in the manner provided by sub-ruled (1) and (3) of Rule 32 of O.XXI of the Code and not by issue of a warrant for delivery of possession in accordance with Rule 35 and the impugned order of the execution Court below is without jurisdiction.

13. Accordingly, the revision is allowed and the impugned order of the Court for issue of a warrant for delivery of possession is set aside. Under the circumstances of the case, the parties are left to bear their respective costs of this revision.

Tatachari, J.

14. I agree.

Shankar, J.

15. I also agree.

16. Revision allowed.


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