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IN THE HIGH COURT OF ALLAHABAD
AJIT KUMAR, J.
State of U.P. and Others – Petitioners
Versus
Kamla Negi and Others – Respondents
Matters Under Article 227 Nos. 1806, 1807 of 2015
Decided On : 31-05-2024
EXECUTION - PERMANENT INJUNCTION - Article 227, Section 47, Order IX Rule 13, Order 21 Rule 16, Order 21 Rule 32, Section 146, Section 51 - The court discussed the execution of a decree for permanent prohibitory injunction, emphasizing that such decrees are enforceable by assignees under Order 21 Rule 16. It highlighted that execution applications are not subject to limitation under Article 135 of the Limitation Act. The court interpreted Order 21 Rule 32, allowing for restoration of possession in cases of dispossession, and clarified that inherent powers under Section 151 C.P.C. should not bypass specific provisions for execution. The court ultimately set aside previous orders and remitted the matter for fresh consideration.
Fact of the Case:
The State of Uttar Pradesh challenged orders from the executing court regarding the execution of a permanent prohibitory injunction decree in favor of the respondents, who were assignees of the original decree holder. The State argued that the execution was barred by limitation and that the decree was inexecutable against them as it was based on possession.
Finding of the Court:
The court found that the execution of the decree was maintainable as the assignees had the right to execute the decree. It ruled that the execution application was not barred by limitation and that the executing court had the authority to restore possession to the decree holders after dispossession.
Issues: 'Whether the execution of the decree was barred by limitation.', 'Whether the assignees could maintain the execution case.', 'Whether two execution applications for the same decree were maintainable.', 'Whether the executing court could order restoration of possession under the provisions of C.P.C.'
Ratio Decidendi: The court held that the execution of a decree for perpetual injunction is not subject to limitation and can be executed by assignees. It clarified that the executing court has the power to restore possession in cases of dispossession and that inherent powers under Section 151 C.P.C. should not be used to bypass specific provisions of the C.P.C.
Final Decision: The court dismissed the petition against the order rejecting the objection to execution but allowed the petition against the order directing execution under Section 151 C.P.C., remitting the matter for fresh consideration under the appropriate provisions of the C.P.C.
JUDGMENT :
AJIT KUMAR, J.
1. Heard Sri M.C. Chaturvedi, learned Additional Advocate General assisted by Sri Sanjay Kumar Singh and Sri Madhu Tandon, learned Standing Counsel for the petitioners and Sri K.K. Arora, learned counsel appearing for the decree holder-respondents.
2. The petition bearing No. 1807 of 2015 under Article 227 arises out of an order dated 25.08.2014 passed by the executing court in execution case No. 70 of 2010 directing for delivery of possession of the property in question to the assignees of the decree holder in performance of the decree of permanent prohibitory injunction affirmed in revision No. 67 of 2014 whereas petition bearing No. 1806 of 2015 arises out of an order dated 29.03.2014 passed by the executing court dismissing the misc. case under Section 47 C.P.C. instituted by the judgment-debtors/State petitioners, affirmed in revision petition No. 66 of 2014. Since pleadings have been exchanged in petition No. 1807 of 2015, the same is taken to be leading petition for the purposes of statement of facts and pleadings raised before the court below and before this Court with consent of learned advocates for the parties and thus both the petitions are being decided simultaneously.
3. Petitioners before this Court are the State of Uttar Pradesh through District Magistrate, Moradabad, Sub Divisional Magistrate, Moradabad and Tehsildar of Tehsil Sadar district- Moradabad.
4. These petitions invoking supervisory/ superintending jurisdiction of this Court under Article 227 of the Constitution has been filed against the order passed by the Executing Court dated 19.03.2014 and 25.08.2014 in Execution Case No. 70 of 2010 (Ashok Kumar Gupta & Ors. v. State of UP & Ors.) rejecting the objection filed by the State-petitioners and direction for parvana bedakhli inviting Amin report and the order dated 26.03.2015 passed by the Additional District Judge, Court No. 5, Moradabad dismissing the two revision petitions of the petitioners against the above two orders.
5. Briefly stated facts as pleaded in the petition are that a suit being O.S. No. 705 of 1992 instituted by one Smt. Kamla Negi for permanent prohibitory injunction in respect of suit property impleading the petitioners as defendants, came to be decreed ex parte against the petitioners. This ex parte decree was never appealed against and the State respondents have just preferred an application under Order IX Rule 13 of C.P.C. seeking recall of ex parte order but the same has remained pending consideration by the court concerned. Subsequently, the suit property came to be sold away by the plaintiff, Smt. Kamla Negi to Mr. Ashok Kumar Gupta and Rajiv Kumar (respondents) vide registered sale-deed dated 01.09.2003. It is Smt. Kamla Negi and these very respondents (subsequent purchasers) who instituted execution case for getting the ex parte decree for permanent perpetual injunction.
6. The plaint case as was set up by Smt. Kamla Negi in the suit was that suit property was owned by her father Late S.D Singh who executed a Will in her favour on 20.11.1968 and this is how this building in a dilapidated condition came to be owned by her which was later on repaired and improved upon by Smt. Kamla Negi, the plaintiff and her husband out of their own money and also got the electricity connection sometimes in the year 1985-86. It was claimed that earlier her husband, who was working in Tehsil department, was living in an official accommodation provided to him but when this building got renovated, he shifted in this building and the official accommodation of Nayab Tehsildar which he was occupying was handed over to Sukh Ram Singh. The necessity arose to institute a suit because the then Tehsildar Jitendra Bahadur Singh was envious of her husband and was insisting upon him to vacate the premises of official accommodation which her husband was earlier occupying and then ultimately sent notice on 02.11.1992 asking him to vacate the premises in question. It was also pleaded that
The court affirmed that a decree holder's rights must be enforced despite repeated technical objections from judgment debtors, underscoring the importance of expeditious justice in civil matters.
One joint decree-holder may apply for execution for the benefit of all unless expressly stated otherwise; courts can assess intent beyond strict decree wording.
The executing Court cannot go behind the decree and must execute it according to its tenor, and cannot entertain objections to the decree's correctness in law or on facts, unless it is a nullity or p....
Objection to execution of decree – Even if Executing Court cannot go behind decree, it does not mean that it has no duty to find out true effect of that decree.
The executing court has jurisdiction to enforce decrees, including injunctions, and can act against violations by judgment debtors.
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