1. Suit for permanent injunction restraining defendants from interfering with plaintiff's possession of ancestral property was decreed; execution sought after alleged post-decree dispossession. (Para 2 , 3 , 4 )
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2026 Supreme(Raj) 666
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
BIPIN GUPTA, J.
Bodulal S/o Ramdev, (Since Deceased Through L.r.) - Petitioner
Versus
Hanuman, S/o Bhawarlal - Respondent
S.B. Civil Writ Petition No. 10242 of 2025
Decided On : 18-02-2026
Important Points
Under Order XXI Rule 32(5) of the CPC, an executing court has the enabling power to restore possession to a decree-holder if a decree for permanent injunction is willfully violated by the judgment-debtor through subsequent dispossession, ensuring the decree is not rendered nugatory.
Subject
Civil Law - Execution Proceedings
Act Referred
Headnote
(A) Code of Civil Procedure, 1908 - Order XXI Rule 32 - Section 47 - Execution of decree for permanent injunction - Restoration of possession - Decree for permanent injunction passed finding the decree-holder in possession - Judgment-debtor allegedly dispossessed the decree-holder and raised construction after the decree - Executing Court dismissed the execution petition on the ground that the decree did not specifically order delivery of possession and that the decree-holder failed to prove the exact date of dispossession - An Executing Court, while it cannot go beyond the decree, has a duty to ensure the decree is enforced in its true spirit and substance so that the successful party is not deprived of relief (Para 12) - Order XXI Rule 32(5) provides that where a decree for injunction is not obeyed, the Court may 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 (Para 13, 15) - This power is enabling and remedial in nature and intended to prevent frustration of judicial orders (Para 17) - In the event of utter violation where the party is forcibly dispossessed, the Court can order restoration of possession to the party wronged to avoid rendering the decree nugatory (Paras 14, 16).
(B) Executing Court - Scope and Powers - An executing court cannot go behind the decree and is confined to execute it as it stands (Para 12) - However, it is not powerless to restore possession if the judgment-debtor renders the decree of prohibitory injunction nugatory by willful and unlawful acts post-decree (Para 17).
Facts of the case:
A suit for permanent injunction was decreed in favour of the plaintiff, with a categorical finding that the plaintiff was in possession of the suit property. The decree was affirmed by the Appellate Court. Subsequently, the decree-holder filed an execution petition alleging that the judgment-debtors had unlawfully entered the property and raised construction in violation of the decree. The Executing Court dismissed the petition, holding that since the decree was for a simpliciter injunction and not for possession, and because the decree-holder did not provide a specific date of dispossession or photographic evidence, the relief could not be granted.
Findings of Court:
The Executing Court's approach was found to be cursory and defeated the object of execution proceedings. Once it is established that the decree-holder was in possession at the time of the decree, any subsequent dispossession by the judgment-debtor constitutes willful disobedience, which the court can remedy under Order XXI Rule 32(5) CPC.
Issues: Whether an Executing Court can order the restoration of possession when a decree for permanent injunction is violated by the judgment-debtor through subsequent dispossession and encroachment.
Ratio Decidendi: The power under Order XXI Rule 32(5) CPC is enabling and remedial, allowing the court to adopt all necessary measures, including the restoration of possession and removal of obstructions, to ensure the decree is not rendered nugatory. The Executing Court cannot dismiss such a petition on technical grounds like the absence of a specific date of dispossession if the decree-holder was found in possession on the date of the decree.
Result: Writ petition allowed; impugned order quashed and set aside; matter remanded to the Executing Court.
(B) Executing Court - Scope and Powers - An executing court cannot go behind the decree and is confined to execute it as it stands (Para 12) - However, it is not powerless to restore possession if the judgment-debtor renders the decree of prohibitory injunction nugatory by willful and unlawful acts post-decree (Para 17).
Facts of the case:
A suit for permanent injunction was decreed in favour of the plaintiff, with a categorical finding that the plaintiff was in possession of the suit property. The decree was affirmed by the Appellate Court. Subsequently, the decree-holder filed an execution petition alleging that the judgment-debtors had unlawfully entered the property and raised construction in violation of the decree. The Executing Court dismissed the petition, holding that since the decree was for a simpliciter injunction and not for possession, and because the decree-holder did not provide a specific date of dispossession or photographic evidence, the relief could not be granted.
Findings of Court:
The Executing Court's approach was found to be cursory and defeated the object of execution proceedings. Once it is established that the decree-holder was in possession at the time of the decree, any subsequent dispossession by the judgment-debtor constitutes willful disobedience, which the court can remedy under Order XXI Rule 32(5) CPC.
Issues: Whether an Executing Court can order the restoration of possession when a decree for permanent injunction is violated by the judgment-debtor through subsequent dispossession and encroachment.
Ratio Decidendi: The power under Order XXI Rule 32(5) CPC is enabling and remedial, allowing the court to adopt all necessary measures, including the restoration of possession and removal of obstructions, to ensure the decree is not rendered nugatory. The Executing Court cannot dismiss such a petition on technical grounds like the absence of a specific date of dispossession if the decree-holder was found in possession on the date of the decree.
Result: Writ petition allowed; impugned order quashed and set aside; matter remanded to the Executing Court.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner: Adv. Asad Sheikh
For the Respondent: Adv.Reashm Bhargava
For the Petitioner: Adv. Asad Sheikh
For the Respondent: Adv.Reashm Bhargava
Table of Contents
2. Judgment-debtors objected that decree was simpliciter injunction without possession relief; decree-holder contended violation required restoration under Order XXI Rule 32 CPC. (Para 5 , 6 , 9 , 10 )
3. Executing court cannot go behind decree but must enforce it effectively; dismissal for lack of specific dispossession details defeats decree; violation attracts Order XXI Rule 32 CPC. (Para 12 , 13 , 14 , 16 , 17 , 18 , 19 , 20 , 21 , 23 , 24 , 25 )
4. Executing court may restore possession and remove obstructions under Order XXI Rule 32(5) CPC to enforce injunction decree violated by judgment-debtor's post-decree dispossession. (Para 13 , 14 , 15 , 17 , 20 , 26 , 27 )
5. Writ allowed; impugned order quashed; execution petition restored to original number for expeditious disposal within six months. (Para 28 , 29 , 30 , 31 , 32 )
6. Can an executing court restore possession to enforce a decree for permanent injunction when the judgment-debtor dispossesses the decree-holder after the decree?
Yes. Under Order XXI Rule 32(5) CPC, executing court has power to direct restoration of possession to give effect to an injunction decree, when dispossession occurs in violation of the decree. (Para 13 , 14 , 17 , 18 , 19 , 20 , 27 )
7. Can an executing court go behind the decree to re-examine findings on possession?
No. Executing court cannot go behind the decree or reconsider findings, such as possession on the date of decree; it must enforce the decree as it stands. (Para 12 , 21 , 23 , 25 )
8. Does the amendment to Order XXI Rule 32(5) CPC with the explanation alter the legal position regarding enforcement of injunction decrees?
Yes. After amendment effective 1-7-2002, the explanation clarifies that 'act required to be done' covers prohibitory and mandatory injunctions, enabling executing courts to take effective enforcement measures. (Para 26 , 27 )
JUDGMENT :
BIPIN GUPTA, J.
1. The present writ petition has been filed assailing the order dated 22.05.2025, passed by the learned Senior Civil Judge, Nasirabad, District Ajmer, in Civil Execution Petition No. 12/2019, whereby the application filed by the judgment-debtors- respondents under Section 47 CPC, raising objections to the maintainability of the execution proceedings, came to be allowed, and as a consequence thereof, the execution petition filed by the decree-holder-petitioner was dismissed.
2. The controversy, in a narrow compass, arises out of a suit for permanent injunction instituted by deceased plaintiff Bodulal, predecessor-in-interest of the present petitioner. The suit pertained to ancestral property comprised of Khasra No. 3217, admeasuring 14 Biswa and 10 Biswanshi, which, as per the revenue record, stood recorded in the names of the plaintiff’s father late Ramdev and proforma defendant’s father late Shravan. It was averred in the plaint that the plaintiff had been in continued possession of the said land and was using the same, inter alia, for storing animal fodder.
2.1 On 12.01.2001, the defendants allegedly entered upon the disputed land and started construction thereon, coupled with threats of forcible dispossession and alteration of the nature of the property. In these circumstances, the plaintiff instituted a suit for permanent injunction on 17.01.2001 seeking protection of his possession.
2.2 In the suit proceedings, the defendants in their written statement controverted the claim and asserted that the property in question had been partitioned between late Ramdev and late Shravan long ago. It was further their case that the share of late Shravan had been purchased by one Shri Bhawarlal on 25.08.1934 and that the defendants, being successors-in-interest of the said Bhawarlal, had been in continuous possession of the disputed land for more than seven decades.
2.3 Upon appreciation of the pleadings and evidence available on record, the learned Trial Court, vide judgment and decree dated 29.10.2015, decreed the suit for permanent injunction. The Court recorded a categorical finding that the plaintiff was in possession of the property in dispute. Consequently, a decree was drawn restraining defendant Nos. 1, 3 and 4 from creating any obstruction in the use and enjoyment of the suit property and from raising any construction or encroachment thereon.
3. Aggrieved thereby, defendant–respondent No. 2 Pappudi, preferred Civil Appeal No. 37/2018 (26/2015), before the learned District and Sessions Judge, Nasirabad, Ajmer. The learned Appellate Court, vide judgment dated 21.12.2024, dismissed the appeal and affirmed the judgment and decree dated 29.10.2015. It was observed that the appellants had failed to substantiate their plea of continuous possession for 60–70 years. The Appellate Court further noted that no objection had been raised on the Commissioner’s report, which formed part of the record of the suit proceedings.
4. Thereafter, the defendants acted in defiance of the decree and attempted to encroach upon and raise construction over the disputed property, thereby disturbing plaintiff’s peaceful possession. The plaintiff, aggrieved by such actions of the defendants, filed an execution petition before the learned Trial Court alleging that the defendants-respondents had, in violation of the decree, taken unlawful possession of the property in dispute by employing force and that removal of encroachment and restoration of possession was warranted.
5. In the execution proceedings, the judgment-debtors filed objections under Section 47 CPC contending, inter alia, that the decree under execution was one of simpliciter injunction and did not contain any direction for delivery or restoration of possession to the decree-holder.
6. In reply thereto, the decree-holder-petitioner asserted that the decree dated 29.10.2015, clearly restrained the defendants from interfering with his peaceful possession and from raising constructio
