{"id":188756,"date":"2007-02-28T00:00:00","date_gmt":"2007-02-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-rajeshree-wo-ramesh-vs-smt-gyandevi-wdo-gangaprasad-on-28-february-2007"},"modified":"2016-02-06T11:10:50","modified_gmt":"2016-02-06T05:40:50","slug":"smt-rajeshree-wo-ramesh-vs-smt-gyandevi-wdo-gangaprasad-on-28-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-rajeshree-wo-ramesh-vs-smt-gyandevi-wdo-gangaprasad-on-28-february-2007","title":{"rendered":"Smt. Rajeshree W\/O Ramesh … vs Smt. Gyandevi Wd\/O Gangaprasad … on 28 February, 2007"},"content":{"rendered":"
Bombay High Court<\/div>\n
Smt. Rajeshree W\/O Ramesh … vs Smt. Gyandevi Wd\/O Gangaprasad … on 28 February, 2007<\/div>\n
Author: B Dharmadhikari<\/div>\n
Bench: B Dharmadhikari<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
B.P. Dharmadhikari, J.<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
Order 21, Rule 32 provided as follows :\n<\/p>\n
(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.\n<\/p>\n
(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.\n<\/p>\n
(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.\n<\/p>\n
(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.\n<\/p>\n
(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:\n<\/p>\n
 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.\n<\/p>\n
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:\n<\/p>\n
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.\n<\/p>\n
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.–\n<\/p>\n
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.\n<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Smt. Rajeshree W\/O Ramesh … vs Smt. Gyandevi Wd\/O Gangaprasad … on 28 February, 2007 Author: B Dharmadhikari Bench: B Dharmadhikari 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-188756","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSmt. Rajeshree W\/O Ramesh ... vs Smt. 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