In cases of alleged noncompliance with a decree, the aggrieved party should approach the execution court for elaborate proceedings and evidence, rather than resorting to contempt proceedings.

Rohit Arya, J.

1. This revision petition under Section 115 of the CPC by the landlord/petitioner/defendant is directed against the order dated 29.04.2014, whereby the executing court on an application filed by the respondent/plaintiff has issued warrant of possession.

2. The facts relevant and necessary for disposal of this revision petition are that the respondent/plaintiff/tenant had filed a suit for injunction seeking relief of protection against the forcible dispossession. The suit was decreed on 28.04.2011.

3. Having the apprehension of forcible dispossession despite the aforesaid decree, respondent/plaintiff moved an application under Order 21, Rule 31 of CPC. The application was contested. In reply to the application, petitioner/defendant denied forcible dispossession. In stead, it was submitted that the respondent himself has vacated the suit premises in lieu of Rs. 60,000/- paid to him, as such, it is incorrect to say that the defendant was forcibly dispossessed.

4. Trial court by the order impugned had issued warrant of possession with the finding that the petitioner/defendant failed to establish that he had tendered Rs. 60,000/- and received by the respondent/plaintiff. Thereafter, the respondent has voluntarily handed over the possession. Consequently, it was found that the respondent has been forcibly dispossessed contrary to the protection against forcible dispossession as decreed, therefore warrant of possession has been issued.

5. Criticising the aforesaid order, learned counsel for the petitioner submits that the trial court has committed a grave illegality and patent jurisdictional error while ordering for issuance of warrant of possession inasmuch as even assuming the averments made in the reply to the complaint of forcible dispossession were not correct but neverthless it gave rise to a dispute as against the allegation of forcible dispossession and therefore in all fairness the executing court was under the obligation to hold an inquiry to ascertain the truth/falsity of the allegation and denial thereof in the reply. That having not been done, the impugned order is vitiated by errors of law and fact. Learned counsel relied upon the judgment of Supreme Court in the case of Kanwar Singh Saini v. High Court of Delhi reported in (2012) 4 SCC 307 to bolster his submission, para 18 whereof reads as under :-

“18. In case there is a grievance of noncompliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21, Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order 39, Rule 2A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21, Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the 1971 Act when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decreed order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order 39, Rule 2A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree.”

6. Per contra, Shri Naveen Kumar Vyas learned counsel for the respondent fairly submits that there was no inquiry conducted by the executing court, however, learned counsel supports the orde