In execution of a decree for injunction, restoration of possession can be ordered by the Executing Court as per the interpretation of sub Rule (5) Rule 32 of Order 21 CPC by the Supreme Court.

JUDGMENT

Raibir Sehrawat, J. (Oral) - The present petition has been filed under Article 227 of the Constitution of India challenging the order dated 19.10.2019, whereby the Executing Court has dismissed the objections preferred by the petitioners/judgment debtors, in the execution proceedings, in which the decree holder/respondent No.l herein, claimed that he had been dispossessed after the decree and that the possession be restored to him.

2. While referring to the pleadings and the orders passed by the Court below, learned counsel for the petitioners has submitted that the decree against the petitioners was only for injunction. Now, by misusing the decree, the respondent/decree holder cannot get the relief of possession. If at all, he wants to claim possession from the petitioners, he has to file a separate suit. So far as the execution of decree in the present case is concerned, the decree holder has not specified as to how and when the petitioners had dispossessed the decree holder of the suit property after passing of the decree. In view of this situation, the Executing Court could not have ordered restoration of possession to the decree holder. The counsel has relied upon the judgments in Nek Das and others vs. Mohan Lal, (P & H) (2019-4) PLR 791' and Satish Kumar vs. Jagdish Chander, (P & H) 2019 (1) PLR 706' .

3. Still further, it is submitted by learned counsel for the petitioners that the scope of Order 21 Rule 32 CPC is not for granting possession of the suit property to the decree holder. Order 21 Rule 32 CPC deals with twin situation, first; regarding the execution of the decree, and if the decree of injunction is otherwise not executable, then to resort to civil imprisonment or attachment of property of judgment debtor. The second part of the above said Rule talks about the violation of the decree passed by the trial Court. To claim any violation of the decree, the specific averments have to be made by the decree holder as submitted above, qua the nature of violation and the act required to be done to undo the said violation. In the present case, there is no such specific averment.

4. Having heard learned counsel for the petitioners and having perused the case file, this Court does not find any substance in the argument of learned counsel for the petitioners. It is not even disputed; and it has been so recorded by the Executing Court as well, that the question of possession qua the suit property had been specifically is in issue before the trial Court. The issue had been decided in favour of the decree holder and the possession over the suit property had specifically been held in favour of the decree holder. The said findings were challenged by the present petitioners before the Appellate Court. However, even the Appellate Court upheld the finding of the Trial Court to the effect that the suit property was in specific possession of the plaintiff/decree holder. Accordingly, the Executing Court has to start with thesaid finding and with presumption that the property was in possession of the decree holder as on the date of passing of the decree. Starting with any other point or assumption, would tantamount to disputing the finding of the trial Court, which had come in the judgments/decree after a long and protracted trial, in which both the parties were at liberty to present their respective cases. So far as the Executing Court is concerned, it could not have gone beyond the decree to dispute the possession in favour of the decree holder. Therefore, the Executing Court has not committed any irregularity or illegality in accepting that as on the date of decree, the possession of the suit property was with the decree holder.

5. The petitioners/judgment debtors have not claimed either in their objections; or even before this Court; that the judgment debtors are not in possession of the suit property; as of today. Rather, it is the case of the petitioners that the petitioners/judgment debtors have throughout been in poss