JUDGMENT
B.P. Dharmadhikari, J.
1. Original plaintiff/decree holder has filed this petition aggrieved by the order dated 30/7/2002 passed by fifth Joint Civil Judge, Junior Division, Nagpur in R.D. No. 587/1991. This Court issued notice to respondents on 4/8/2006 and as they did not appear, fresh notice indicating that matter will be disposed of finally at the admission stage itself was directed to be served by order dated 18/9/2006. Said notice is also served before 6/10/2006 but there is no appearance. The matter has been listed on 5 occasions thereafter and ultimately, Advocate P.V. Vaidya who represents petitioner has been heard finally by making the Rule returnable forthwith.
2. Petitioner and respondents are neighbours. In fact, petitioner has purchased his house from respondents on 6/10/1978 for valuable consideration by registered sale deed. On the eastern side of this house, the respondents have retained a small house and open court yard. Respondents obstructed petitioner from raising the compound wall on eastern boundary of her house and hence Petitioner filed Civil Suit No. 1124/87 claiming permanent injunction against respondents restraining them or anybody on their behalf from committing acts like dumping and throwing of building material in Suit house, from making use of Suit house or any portion thereof for ingress and outgress or for carrying through it any building material, making any construction or erection causing any damage or interference to it, prohibiting them from causing any obstruction in construction of compound wall by her. She also sought relief of restraining them from dispossessing her from Suit house or any portion thereof and mandatory injunction directing them to remove building material etc. dumped on the site of Suit house. The Suit came to be decreed on 4/4/1988 in view of pursis filed by respondents admitting the claim of petitioner/plaintiff. Thereafter on 10/12/1991 petitioner filed execution proceedings against respondents for removal and demolition of construction and encroachment made by them on part of Suit house. She also moved express application for issuing of warrant against them for said purpose on very same day. Respondents filed reply on 28/2/1992 and denied any encroachment on Suit house or any illegal construction by them. They took a plea that entire construction done by them was within their own property and it was also over before filing of execution. The lower court appointed trust engineer of Nagpur Improvement Trust as Commissioner for local investigation and said Commissioner submitted his report after conducting spot inspection in presence of parties and their advocates. Earlier he had submitted report which was objected to by respondents and hence court below directed him to execute commission again in presence of both parties. Trust engineer accordingly carried site measurements with the help of his assistants and existing position of construction was marked on plan and signature of parties was obtained upon it. After taking measurements a fair plan came to be prepared and on the basis of all this, said engineer submitted his report pointing out encroachment made by respondents on Suit land and its extent. This report has been submitted on 11/9/1996. Respondents objected to said report and hence said Commissioner was examined before lower court as witness. Respondents also examined one of them. Court below then heard parties and found that prayer for removal of construction could not have been granted as it was prohibitory decree. It also found that had petitioner approached when construction was in progress, decree could have been executed as provided under Order 21, Rule 23 of CPC. On merits, it found that there was no order superseding the first report of Commissioner and hence his second report could not have been accepted. It has relied upon judgment of Kerala High Court in case of Swami Premananda Bharati v. Swami Yogananda Bharati reported at . It also found that even second report of Commissioner was defective because Commissioner no where specified in report as to how he calculated width of lane or distance between point “C” and point “D”. It therefore dismissed the execution.
3. Advocate P.V. Vaidya has contended that when first report of Commissioner was objected to by respondents, lower court directed Commissioner to inspect spot again in presence of parties and to submit another report. He states that thus lower court did not accept and act upon first report of said Commissioner. Said Commissioner thereafter inspected spot accordingly and after conducting measurements in presence of parties and after referring to plans prepared fresh report and submitted it to executing court. In such circumstances his first report stood rejected and respondents could not have raised argument about its not quashing or setting aside expressly by lower court. Learned Counsel argues that no such order was necessary and respondents were estopped from raising such objection. He further states that Commissioner was trust engineer i.e. chief of that department of local authority which sanctioned building plans. His technical knowledge and capacity was not in dispute. He was examined and cross-examined, and court below has not made reference to his evidence at all. He states that earlier decree was accompanied by admitted plaint map which gave all measurements and spot inspection was done by competent technical person on the basis of said map and decree and he prepared a fair plan giving details of encroachment. Without considering these details and without considering his evidence, court below has drawn erroneous presumption in relation to point “C” and failed to note the map appended to sale deed which in fact was plaint map itself. He further argues that law having permitted petitioner to file Suit for prohibitory relief is not helpless and respondents who violated prohibitory decree cannot be given advantage by finding out any loophole in Order 21, Rule 32 (5) CPC. He argues that respondents are duty-bound to abide by prohibitory decree and if they are not removing the obstruction/encroachment, executing court can very well permit petitioner to do it and extend her necessary protection and help for that purpose. He relies upon judgment of this Court in case between Yashodabai Ganesh Naik v. Gopi Mukund Naik reported at to draw analogy and substantiate his arguments.
4. From perusal of impugned order it is clear that court below has refused to rely upon the report of Commissioner on the ground that he has not specified in his report how he gathered distance between point “C” and “D”. It has observed that Commissioner has shown construction of house of respondents at distance of 8 feet 3 inches from point “C” and he has not specified whether there is compound wall of house of respondent at said point. In next sentence it has been observed that construction of respondents house is at point “C”. It is also observed that Commissioner no where specified as to how he calculated width of lane or distance between the point “C.” and point “D”, particularly when the construction of respondents house is at the distance of eight feet three inches from point “C”. Why all these observations are relevant is not clear. What court below wants to signify thereby and how it has applied its mind is not apparent. The next sentence again states that Commissioner has not given details about starting point of construction of house of decree holder from point “C”. The decree drawn in earlier proceedings is very specific and plaint map therein was admitted by respondents. Not only this said plaint map is the map with sale deed executed by respondents in favour of petitioner. Petitioner wanted to raise compound wall and he was obstructed which led to filing of civil Suit. Points “C” and “D” already exist and house of respondents is on eastern side of petitioner’s house beyond line “D–E” as shown in it. There can be no dispute in execution about this position. Encroachment complained of in violation of decree is also very clear. Commissioner has specifically mentioned offset “C–D” as 3′-9” i.e. three feet nine inches. He has stated that said offset is now reduced to 2′-6”. He has pointed out that there is encroachment to the extent of corresponding difference i.e. of 1′ 3” by respondents. It is therefore clear that this report and position either has not been correctly appreciated by court below or then there is failure to express itself correctly in this respect. What is cross-examination of said Commissioner in this respect is also not discussed by lower court. As all necessary details to record any positive finding about this position are not available to this Court and as respondents are absent though served, I finding it proper to direct Court below to reconsider this aspect again.
5. Judgment of Division Bench of Kerala High Court in case of Swami Premananda Bharati v. Swami Yogananda Bharati (supra) is also not relevant to conclude that second report submitted by Commissioner could not have been accepted and acted upon. Very same Commissioner submitted first report and it was objected to by present respondents on the ground that measurements therein or spot inspection has been undertaken behind their back. Court below therefore directed Commissioner to visit spot again and to undertake exercise in presence of parties. It is obvious that court accepted objection as raised and hence it discarded first report of Commissioner. Facts of reported judgment in case decided by Kerala High Court are clearly distinguishable. In said case first commissioner appointed to take accounts completed his task with assistance of qualified auditor and was also examined in trial court. His report at exh. C-5 was objected to. The trail court without deciding that objection appointed another advocate as commissioner purportedly to assess additional details clarifying that if it happened to cover any point already mentioned in exh. C-5, its said part would be ignored. Defendant had objected to this new appointment and he also approached High Court in revision which came to be rejected because of clarification mentioned above. The trail court then set aside Exh. C-5 & based its judgment on report of second commissioner. Division Bench of Kerala High Court has considered controversy in this background. Present respondents successfully objected to first report on the ground that it was prepared behind their back and also got order of re verification and reinvestigation as they desired. Said order directing commissioner to undertake exercise afresh in presence of parties was not challenged by them but they acquiesced in it. Their objection and contention that first report of Commissioner was still alive has been taken after receipt of such second report of Commissioner and when they found it to be against them. It is therefore clearly by way of an afterthought which court below could not have accepted or encouraged. It is to be noted that records does not show that second report of Commissioner was objected to by them on any other procedural error.
6. This brings me to consideration of question whether decree as obtained by petitioner could have been executed by court below by asking respondents to remove encroachment. The petitioner requested court below to issue warrant for removal and demolition of said encroachment. Court below has found that construction made gave rise to separate cause of action and petitioner should have filed another Suit as construction was already completed. The view is taken because of provisions of Order 21 Rule 32 CPC.
Order 21, Rule 32 provided as follows :
(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 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) has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attachment 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 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 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.” By Section 14(a) of Court of Civil Procedure (Amendment) Act, 2002 following explanation has been added after above Sub-section (5) with effect from 1/7/2002:
Explanation:–For the removal of doubts, it is hereby declared that expression “the act required to be done” covers prohibitory as well as mandatory injunctions.
The statement of objects and reasons of 2002 Amendment Act of CPC in its claws (l) states that explanation to Rule 32 was added on the basis of 54th, 139th and 144th Reports of Law Commission and it is clarificatory in nature. Thus, entire controversy about executability of prohibitory decrees in circumstances when act prohibited has been accomplished by judgment debtor appears to have been set at rest by this explanation. Instead of making reference to entire history in this respect, I find reference to following two judgments more than sufficient. In Murlidhar s/o Bhima Vaidya and Anr. v. Nababbi Yusufkhan, deceased, through LRs, learned Single Judge of this Court observed:
15. The above discussion shows that the decree of perpetual injunction even though found to be personal one, can be enforced as against the purchaser pending litigation from the judgment debtor. Now, the question arises in what manner the decree for perpetual injunction should be executed as against such purchasers. The learned Counsel for the petitioners submitted that in that eventuality, Order 21, Rule 32 of the Code of Civil Procedure provides for the manner in which the decree for perpetual injunction can be executed. He submitted that, therefore, the said Rule provides for detention in Civil prison or by attachment of the property or by both ways. He further submitted that Sub-rule (3) provides that if the attachment in respect of the property remains in force for six months and the judgment debtor has not obeyed the decree, such property may be sold and out of the proceeds, the Court may award the decree holder such compensation as it may deem fit. He further made reference to Sub-section (5) and submitted that it will apply in case if certain acts are required to be done by the judgment debtor, the Court may get it done through decree holder or some other person and the expenses for the same be recovered from the judgment debtor. He submitted, except this, no other provision has provided for execution of the decree of perpetual injunction and, therefore, he submitted that the delivery of possession cannot be directed under Order 21, Rule 32 of the Code of Civil Procedure and submitted that the order passed by the Executing Court thus, not in consonance with Rule 32 requires to be set aside. He further submitted that if the Code of Civil Procedure has provided the machinery and the procedure for execution of the decree, no other procedure can be adopted by the Court by invoking the powers under Section 151 of the Code of Civil Procedure. He relied upon AIR 1981 Delhi 84, AIR 1972 Delhi 142 and AIR 1965 SC 993 and submitted that the order for delivery of possession passed by the Executing Court be quashed and set aside. However, the learned Counsel for respondents, in order to justify the Trial Court’s order for delivery of possession has relied upon AIR 1986 J & K 84 and AIR 1997 Karnataka 249 and submitted that in appropriate case, the Court can take steps to see that the decree holder gets possession of the property.
18. What is pertinent to be noted from the above cases is that all the Courts agree that Order 21, Rule 32 of the Code of Civil procedure is the only provision for the purposes of executing the decree of injunction. However, within that provision the attempts are being made to find out the way to the problem involved in the case. However, what is pertinent to be noted is that in the matter of AIR 1986 J & K 84 (supra), the decree was for mandatory injunction directing the judgment debtor to vacate the property and for permanent injunction restraining him from causing any interference with the possession of the decree holder with respect to the suit property. This shows that while the decree was passed, the possession was admittedly with the judgment debtor and the judgment debtor was directed to vacate the premises. This is, in fact, a decree for delivery of possession and thereafter for perpetual injunction. However, instead of directing him to deliver the possession to the judgment debtor, the mandate has been issued to vacate the premises and then on the basis of Sub-rule (5) of Rule 32, it has been interpreted that the Court can take every steps to do that act which the judgment debtor is directed to do either through plaintiff and/or through some agency. However, it appears that the decree for possession has been passed by way of a mandatory injunction and thereafter the provisions of Order 32, Rule 5 have been invoked for aid. I find that the decree as was for execution in that case is not for execution in the present matter. Present decree is only a prohibitory decree that the defendants are restrained from interfering with the peaceful possession of the plaintiff and, therefore, looking to the facts of the present case and the decree under execution, the manner in which the execution has been suggested in AIR 1986 J & K 84 is not acceptable. This case on the facts of the present case stands distinguished. The second case is AIR 1997 KERALA 249 (supra). Here in this case the defendant was directed not to blast on his land so as to affect the land of the plaintiff and, therefore, from the decree itself it is clear that the decree was not only going with the person but it was going along with the land, because the mischief on the defendant’s land was causing an injury to the plaintiff’s land and, therefore, that decree of injunction was not simplicitor decree of injunction but it was personal and coupled with the land and, therefore, the ratio from the implementation of such decree cannot be applied to the present facts of the case, so as to infer that the decree goes along with the land and, therefore, the possession warrant should be issued. This case is also not applicable to the facts of the present case. However, the principle accepted by all these cases is that the Order 21, Rule 32 of the Code of Civil Procedure is the only provision for execution of the decree of an injunction. It is further revealed from the Supreme Court judgment AIR 1965 S.C. 414 [supra] that the Courts cannot invent any other mode of execution by taking recourse of Section 151 of the Code of Civil Procedure and, therefore, ultimately I find that the order directing to deliver possession is not proper and legal order in the present execution petition. However, it is certain that the decree can be executed as against the purchaser/ petitioners by taking recourse to the Order 21, Rule 32. But in view of discussion made above, the directions for the delivery of possession are required to be set aside. However, the execution of the said decree to the extent permissible under Order 21, Rule 32 of the Code of Civil Procedure.–
In case of prohibitory decrees like one obtained by present petitioner, it has been noticed that such decrees prohibited or restrained defendants or judgment debtors from undertaking something or from doing something and did not envisage any act to be done by them. On the contrary such decrees prohibited an “act” on his part. Thus some Courts held that when there was no particular or specific “act” directed to be performed by such judgment debtor, there was no question of permitting decree holder to himself perform any such act on his behalf as contemplated by language of Order 21 Rule 32 (5). It is not necessary to refer to entire history in this respect in view of explanation added by 2002 amendment. Law permits a person to protect his rights in all possible way and filing Suit to obtain prohibitory or preventive relief/injunction is one such mode. But it was noticed that there was no equally effective procedure for its execution. Hence judgment debtor who took possession by violating such prohibitory or restraining decree could not be evicted and decree holder was required to file fresh suit to remove/oust him. The very purpose of filing a suit for prohibitory or restraining or preventive relief was thus getting defeated and it was leading to multiplicity of litigation. There were conflicting views expressed in various decisions of different High Courts. However, after amendment mentioned above said lacuna has been taken care of & executing court is therefore now competent to undo acts or things commission of which has been prevented by prohibitory decree. The amendment has removed the impression of helplessness of executing court in such matters and also avoided unnecessary litigation. The remedy of filing Suit to obtain preventive or restraining relief has become more meaningful. In the facts of present case it is apparent that attention of lower court has not been invited to this amendment at all. Conclusion reached by that decree obtained by present petitioner/ plaintiff cannot be executed is therefore unsustainable and deserves to be quashed and set aside.
7. Accordingly the impugned order dated 30/7/2002 passed by court below is quashed and set aside. Proceedings in R.D. No. 587/1991 are restored back to its file. It is directed to take fresh decision about grievance made by present petitioner on merits by reconsidering its finding on the issue of report submitted by Commissioner pointing out encroachment of present respondents as mentioned above. If it finds that petitioner/decree holder has proved violation of decree in view of such encroachment, it shall proceed to issue warrant as prayed for. As the matter is old and is being sent back, court below shall take fresh decision within period of three months from the date of communication of this order to it. Rule made absolute accordingly with no order is to costs.