The main legal point established in the judgment is the interpretation of the provisions of Order 21 Rule 16 C.P.C. and Order 21 Rule 32 (5) of C.P.C. in the context of executing decrees for declaration and permanent injunction without the relief of possession.

JUDGMENT

1. Challenge in this petition is to the order dated 08.01.2018, in Execution Case No.31-A/2013, passed by the Second Additional Judge to the Court of First Civil Judge Class-II, Rajnandgaon, District- Rajnandgaon by dismissing the application filed by the petitioners/decree holder under Order 21 Rule 32 of C.P.C.

2. The petitioner No.1 had filed a Civil Suit No.3-A/1977, before the Court of Civil Judge Class-II, Rajnandgaon, which was dismissed after completion of trial on 24.03.1977. An appeal was preferred, which was registered as First Appeal No.22-A/1977, before the Court of District Judge, which was allowed by the judgment and decree dated 27.10.1977 and the judgment and decree was passed in favour of the petitioner No.1 granting relief, in his favour by issuing declaration with respect to the title of the suit property and also by granting permanent injunction of restraint against the respondent, prohibiting interference in the possession of the petitioner No.1/plaintiff. Second Appeal No. 269 of 1978 was preferred by the respondent before the High Court of Madhya Pradesh, which was dismissed by the judgment dated 27.11.1978. Thereafter, the judgment and decree in favour of the petitioners became final. Petitioner No.2 and 3 are the purchaser of the suit property, therefore, interested parties.

3. In subsequent development, the respondent has granted temporary lease to some person on some portion of the suit land in the year 1983. The petitioner No.1 sold 30 decimals land to Ashok Kumar Parekh and 30 decimals of land to Uday Raj Parekh, petitioner No.2 and 3 respectively. As the purchasers of the property i.e. the petitioners No.2 and 3 from the petitioner No.1 could not get the possession, they moved an application under Order 21 Rule 32 of C.P.C. in which they could not succeed. Thereafter, a W.P.(C) No.2676 of 2001 was filed by them, before the High Court of Chhattisgarh, the same was decided on 13.04.2004 by the Division Bench of this Court, in which the petition was dismissed, however, it was observed that the appropriate remedy for the petitioner would be to approach the Civil Court for execution of the decree or for handing over the possession or to approach the revenue authorities in accordance with law and thus other equally efficacious remedy was available to the petitioners.

4. Consequent to the order passed by this Court in W.P.(C) No. 2676 of 2001, the petitioners No.2 and 3 moved an application before the Collector, Rajnandgaon seeking possession of the portion of the suit land, which they had purchased from the petitioner No.1/plaintiff. Because of inaction of the Collector, Rajnandgaon, another W.P.(C) No.5189 of 2007 was filed, before this Court, which was disposed off vide order dated 27.08.2007 with specific direction to consider and decide the application of the petitioners No.2 and 3 within a time frame. Even then the petitioners could not get the possession, however, the mutation has been entered in favour of the interested purchasers, who are petitioners No.2 and 3. In the meanwhile, the possession holder of the suit property have also filed a civil suit making prayer to legalize their possession. Therefore, the petitioners then filed an application under order 21 Rule 32 of C.P.C., before the Execution Court on the basis of their entitlement for possession of the suit property, which has been erroneously dismissed by the execution Court, holding that judgment and decree in civil suit does not provide for any relief for possession.

5. It is submitted that on the strength of the decree in favour of the petitioner No.1, the petitioner No.2 and 3 being the purchaser of the suit property and thus assignee of the decree have right over the property in which they have not received possession so far, therefore, to give complete effect to the decree, it was necessary for the Execution Court to have ordered the respondent to handover the possession of the suit property. Hence, the order passed is er