A decree for perpetual injunction may be enforced through restoration of possession if the injunction is breached, allowing courts to exercise inherent powers in such situations.

JUDGMENT :

S.G. CHAPALGAONKAR, J.

1. Rule. Rule made returnable forthwith. With consent of the parties, matter is taken up for final hearing at admission stage.

2. The petitioners/judgment-debtors impugn order dated 12.09.2023 passed by learned District Judge, Jalna in Regular Civil Appeal No.78/2023, thereby upholding order dated 13.07.2023 passed by learned Civil Judge Junior Division, Jafrabad in Regular Darkhast No.8/2019, by which petitioners/judgment-debtors are directed to deliver vacant possession of suit house to respondent/decree holder.

3. The respondent had instituted Regular Civil Suit No.143/2008 seeking decree of perpetual injunction against petitioners in respect of house property i.e. Grampanchayat House No.841 (old G.P. House No.993) situated at Jafrabad. The Trial Court decreed suit vide judgment and order dated 29.10.2009 and restrained petitioners from obstructing peaceful possession of respondent over suit house. The decree passed by Trial Court has attained finality.

4. The respondent/decree holder filed Regular Darkhast No.8/2019 before Civil Judge Junior Division at Jafrabad seeking execution of decree dated 29.10.2009 contending that petitioners in breach of decree of perpetual injunction put articles in suit house and petitioner no.1 has actually started residing in it. The respondent, therefore, sought police aid for restoration of possession, so also prayed for putting petitioners in civil prison and claimed compensatory cost of Rs.2,00,000/-. The Executing Court issued notices to petitioners. They filed their say. According to them, once respondent/decree holder admitted possession of petitioners, it is expected to file separate suit for recovery of possession. The learned Executing Court then framed points for consideration and recorded evidence of parties. The respondent/decree holder recorded his evidence on oath and stated that since he was out of station, in the evening of 25.12.2018 petitioners broke lock of suit house and forcefully entered into suit house alongwith household articles. On 01.02.2019, when he came back, petitioners abused him and gave threat to kill him. The petitioner no.1 recorded his evidence. He denied ownership of respondent over Grampanchayat House No.841 i.e. suit property. The learned Executing Court after considering aforesaid evidence directed petitioners to hand over possession of suit house in favour respondent. In Regular Civil Appeal No.78/2023 filed by petitioners before District Court, order as passed by Executing Court is confirmed.

5. Mr. Jahagirdar, learned Advocate appearing for petitioners vehemently submits that decree of perpetual injunction was passed in favour of respondent. However, under garb of execution of such decree he is trying to obtain possession of suit property from petitioners. According to Mr. Jahagirdar, there was no evidence before Executing Court to establish that respondent was in possession of suit property and he has been forcefully dispossessed by petitioners. He would submit that decree as passed by Trial Court was invalid, in absence of proof of partition. According to Mr. Jahagirdar, property in which respondent was residing has been acquired and petitioner no.1 was residing in his property, which is shown as suit property. According to Mr. Jahagirdar, decree of perpetual injunction could have been executed in terms of Order XXI Rule 32 of Code of Civil Procedure, which prescribes for mode of detention of judgment-debtors or auction sale of his property. However, there cannot be order to deliver vacant possession.

6. Per contra, Mr