Sk. Mainuddin &Amp; Ors vs Bibi Saimu Nessa on 1 July, 2008

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                      C.R. No.919 of 2008
                      SK. MAINUDDIN & ORS
                             Versus
                       BIBI SAIMUN NESSA
                          -----------

2 1.07.2008 Heard counsel for the petitioners.

In the opinion of this Court, the

impugned order allowing the amendment, does not

suffer from any jurisdictional error specially

when the petitioners, judgment debtor has also

been given opportunity to file additional

objection. The Court below, in fact, has

correctly proceeded in terms of Order XXI, Rule

32(5) which lays down as follows.

                             "(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
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the Court may direct and may be

recovered as if they were included

in the decree”.

The submission of the counsel for the

petitioners that the petitioners have already

filed Misc. Case No. 2(A) of 2006 for setting

aside the ex-parte decree, sought to be executed

in Execution Case No. 1/2004 by the decree holder,

opposite party and therefore the petitioners would

suffer irreparable loss on account of the impugned

order allowing amendment, is to be only noticed

for its being rejected. This Court cannot ignore

the fact that a decree for permanent injunction in

favour of the decree holder, opposite party had

already been passed in the year, 1994 and

therefore, if any dispossession as alleged by her

had taken place in the year, 2004 contrary to the

scope of decree, the Court below had acted within

its jurisdiction by allowing amendment in this

regard in terms of the principles of Order XXI

Rule 32(5) of C.P.C..

The apprehension of the petitioners that the

Misc. Case filed by him would be kept pending for

an indefinite period, is also misconceived as

there is nothing on record to support the same.

It is, however, observed that the aforementioned
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Misc. Case No. 2(A) of 2006 must be disposed of

expeditiously.

With the aforementioned observations and

directions, this Civil Revision application

is dismissed.

Bibhash                               (Mihir Kumar Jha, J.)
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