IMPORTANT POINT
The court emphasized that parties must comply with decrees and not cause delay in execution proceedings. The court also clarified the applicability of provisions of the Civil Procedure Code, 1908, in the context of execution proceedings.

JUDGMENT :

1. The instant writ petition has been preferred by the petitioners/defendants under Article 227 of the Constitution of India seeking following relief :

“It is, therefore, most respectfully prayed on behalf of petition that the writ petition may kindly be allowed with costs throughout and the impugned order dated 25.01.2024 (Annexure-12) passed by the Senior Civil Judge, Sanchore in Civil Execution Case No.06/2023 (CIS No.06/2023) may kindly be quashed and set aside.

Any other appropriate order or direction, which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioners. Costs of the writ petition may kindly be awarded to the petitioners.”

2. Brief facts of the case are that the respondents/plaintiffs filed a suit for eviction against the petitioners/defendants, which was decreed by learned trial court on 16.01.2016 (Annexure-1) whereby the petitioners/defendants have been directed to provide the way from Points ‘E to F’ from their araji at the expenses of the petitioners in order to give the respondents right of easement and peaceful way. Thereafter, the petitioners filed a first appeal which was however dismissed for non-prosecution and subsequently, the petitioners filed a restoration application, which is pending before the concerned appellate court.

3. Thereafter, the respondents filed an Execution Petition No.21/2022 before the learned Execution Court, which was also decreed in favour of the Respondents and the petition was disposed off vide order dated 07.10.2022 (Annexure-2). Due to the inaction of the petitioners, the respondents further filed an Execution Petition No. 43/2022 which was also disposed vide order dated 17.02.2023. Further, the respondents have filed an Execution Petition No. 06/2023 under Order 21 Rule 32 and Rule 11A of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) wherein the learned Executing Court issued a warrant of attachment (Annexure-3) and also issued show cause notices (Annexure-4) under Order 21 Rule 37 of CPC, to the petitioners.

4. Thereafter, the petitioners have challenged the said order by way of Writ Petition before the Hon’ble High Court, and vide order dated 10.05.2023 (Annexure-5), the Hon’ble High Court has directed the Dy. Government Counsel to assist the Court along with Tehsildar Sanchore, Jalore District with respect to ascertaining whether the way in question is open or not. The Hon’ble High Court, after taking into consideration the Site Report, produced by the Dy. Government Counsel, which indicates that the way is open from Point ‘B to C’ and ‘C to D’, vide order dated 19.05.2023 (Annexure-7), observed that for the time being, the Revenue Officer has to ensure that the way ABCD remains open till the next date and the status quo has to be maintained till the matter is brought before the Hon’ble Court on 25.07.2023.

5. On 31.05.2023 (Annexure-9), the petitioners sought withdrawal of the said writ petition with liberty to file an application under Order 21 Rule 58 read with Section 47 and 151 of CPC, and the permission was granted by the Hon’ble Court, with a direction to the learned Executing Court to decide the matter within 90 days. The application has not yet been decided and is still pending. The respondents, have also filed a rejoinder and mentioned in their reply to the said application that the provisions of Order 21 Rule 37 of CPC cannot be applied to the present case since the decree which has been passed by the learned Trial Court, the proceedings for execution has not been provided under Order 21 Rule 27 of CPC. The learned Executing Court, vide the order dated 25.01.2024 (Annexure-12) have allowed the application filed by the respondents and ordered for the arrest of the petitioners through arrest warrants for a period of 40 days as a civil imprisonment. Thus, being aggrieved of the order dated 25.01.2024, the petitioners have preferred this writ petition.

6.