High Court of Punjab and HaryanaCR/7084/2014disposed of

Dev Raj v. Parkash Ram & ANR

2023-08-09Mr. Justice Sanjay Vashisth8 pages

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+ 8Brief facts of the application is that the DH/ Applicant has filed Civil Suit No. 172 of 19.04.1995 against the JDS/ defendants for "Mandatory Injunction" directing the defendants to remove the illegal and unlawful construction raised in the passage bearing Khasra No. 160 Khatoni No. 127 Khewat No. 421 situated in Village Barchha, HB NO. 83, Tehsil Dasuya, District Hoshiarpur and to restore the passage in to its original position. That the above said Civil Suit was

decided by Mrs. Sukhwinder Kaur, PCS, Civil Judge (Jr. Divn.), Dasuya and the same was decreed by judgment and decree dated 27.11.1998 and the defendants were directed to remove the illegal and unlawful construction from the passage in suit within two months from the date of judgment and decree. That the defendants assailed the impugned judgment and decree in the appellate court and during the pendency of the appeal a compromise was affected between the parties on 23.02.2001 and compromise was Ex. A1. The counsel for the applicants and the respondents made statement in the ld. Appellate Court and the appeal was dismissed as withdrawn on 04.09.2003. That the execution filed by the DH in respect of the judgment and decree dated 27.11.1998 was pending in the executing court.

In the execution JDS filed an application 21 Rule 2 read with Section 151 of CPC for recording the satisfaction of decree being adjusted and satisfied arguments hared on the application and the application was allowed by this court vide order dated 24.03.2008. That the JDS are head strong persons and they again on 05.11.2008 illegally and forcibly encroached upon the street by way of raising wall which was vacated as per the compromise and the fresh encroachment has been shown in the attached site plan in red color and devoted within letters ABCD to which they have no right to encroach upon the some and they are legally bound to vacate the same as a decree of mandatory injunction was passed by the court.

That the JDS have subsequently raised the wall in the street and legally they have no right to encroach upon the passage in dispute by way of raising wall and in this way JDs have disobeyed the decree of mandatory injunction passed on 27.11.1998, hence, the present application."

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D+ 8. For attracting action in execution of judgment and decree under Order 21 Rule 32 CPC, violation has to be proved by the decree=holder. Mere passing reference to say that the judgment=debtor was not bound by the decree cannot be taken to be an instance of alleged violation. It is true that, even if, there is no violation of the decree as on date in terms of specific instance, that itself will not

preclude the decree=holder from taking action in terms of Order 21 Rule 32 CPC at a subsequent stage, when such an occurrence takes place. The decree=holder cannot be compelled to file another suit so as to seek fresh restraint order against the judgment=debtor.

Explanation was added to sub=Rule (v) of Rule 32 CPC by way of amendment w.e.f. 01.07.2002. It has been declared that the expression "the act required to be done" covers prohibitory as well as mandatory instructions. The intended object was to give full effect to the decree. In Gurcharan Singh and another vs. Gurudwara Shri Singh Sabha (Regd.) Sector 19=D, Chandigarh, 2004(2) PLR 330, this Court after considering recommendations of the Law Commission on the 3 of 6 point in issue and the explanation added to Order 21 Rule 32 CPC by way of amendment observed in the following manner:= "15. It is in view of the afore=mentioned historical perspective that the order dated 23.2.2004 passed by the Civil Judge has to be examined. The expression 'act required to be done' has, been extended to prohibitory as well as mandatory injunctions.

The view taken by the Full Bench of Delhi High Court has been treated as a narrower view because that was a case, in which the decree against the licensee was to quit and vacate the premises but the High Court by taking a narrower view expressed its inability to invoke Order 21 Rule 32(5). Therefore, the question posed by the Law Commission, which led to the recommendation for adopting wider view has been accepted by inserting explanation to Sub=rule (5). The decree=holder is not required to file another suit when he has already acquired a decree in his favour by spending much time and expense.

by the Court at the cost of judgment=debtor. In the instant execution of the decree for mandatory injunction, where the possession is sought from a licensee. The aforesaid order is consistent with the spirit of law and the explanation added as per the recommendation made by the Law Commission. The direction to vacate the premises situated in the Gurudwara Sahib where the judgment=debtor petitioners were allowed to stay being the sewadars is another form and method to direct hand over of possession. Tweedledes is Tweedledum. It can mean 4 of 6 nothing else except the handing over of possession and, therefore, the wider view as suggested by the Law Commission has to be followed because it serves the ends of justice. The decree cannot be defeated by raising technical objections.

It is well settled that technicalities of law should be construed to advance justice and not to defeat justice. With utmost defence to the ld.

21. The wider view preferred by Allahabad High Court in Harihar Pandey's case (supra) has rightly held that the decree holder cannot be compelled to file another suit for it would multiply litigation which course public policy would discourage. Courts cannot be party to the illegal designs of a Judgment debtor who wishes to carry on with his illegal possession. The ground realities propagated by Realist School of Thoughts led by Jurist like Karl Llwewllyn must dawn on the parties to litigation and substantial justice must be done. Therefore, I do not find any ground to interfere with the order passed by Civil Judge. The petition is liable to be dismissed. For the reasons recorded above, this petition fails and the same is dismissed."

. The resultant effect would come to the effect that the decree=holder cannot be compelled to file another suit for it would multiply litigation which course public policy would discourage.

It is observed that as on date no action is warranted 5 of 6 under Order 21 Rule 32 CPC, but that does not preclude the decree=holder from initiating the proceedings, if violation of the decree takes place in future, for which decree=holder cannot be compelled to file another suit for seeking fresh restraint order against the judgment=debtor. There are many reasons for such indulgence to the decree=holder.

In view of aforesaid, I am of the view that at this juncture, no interference is called for in the impugned order. This revision petition is accordingly disposed of." (/ $

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Lavisha Whether speaking/reasoned:

Yes/No Whether Reportable: Yes/No