IMPORTANT POINT
When decree-holder dispossessed after passing of decree for permanent injunction then Executing Court has full power to restore possession to decree-holder under Order XXI, Rule 32 of CPC.

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of thc Constitution of India for setting aside impugned order dated 29.05.2010, Annexure P9, and order dated 12.10.2009, Annexure P7, passed by learned Civil Judge, Junior Division, Ambala Cantt., in execution proceedings instituted by respondent-decree holder against present petitioners.

2. I have heard learned counsel for the petitioners and have gone through the whole record carefully, including the impugned orders passed by learned trial Court.

3. Facts relevant for the decision of present revision petition are that a suit for permanent injunction was filed by respondent-decree holder against the present petitioners-judgment debtors in respect of common street shown in red and marked by letters. ‘ABCD’ in the site plan, situated between House Nos.6352/10/2, 3, 4 and 63-52/10/1 at Nicholson Road, Ambala Cantt.

4. Suit was contested by present petitioners-defendants. However, the same was decreed in favour of respondent-plaintiff vide judgment and decree dated 1.12.1999 and 2.12.1999 respectively, Annexure P4. The said judgment and decree have become final. Hence, execution application has been filed by respondent-decree holder for getting the said decree executed. Petitioners filed objection petition, Annexure P6, in the execution petition, which was dismissed by learned Executing Court vide order dated 12.10.2009, Annexure P7. On 6.3.2010, respondent decree holder filed an application under Order 21 Rule 32 and 11A read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as ‘the Code’) for specific performance of decree of injunction with a prayer to direct the petitioners-judgment debtors to remove encroachment by demolishing the building constructed on the property in dispute. On the said application, impugned order dated 29.5.2010 was passed, which is Annexure P9.

5. It has been contended by learned counsel for the petitioners that provision of Order 21 Rule 32 and 11A of the Code applies only to decree for mandatory injunction and not to the suit for permanent injunction and hence, it is contended that in case of decree for prohibitory injunction, remedy lies with the decree holder for filing a fresh suit for possession and hence, it is contended that in execution proceedings under Order 21 Rule 32 and 11A read with Section 151 of the Code, warrant of possession cannot be issued. He has also placed reliance upon a Full Bench judgment of Delhi High Court in Sarup Singh v. Daryodhan Singh AIR 1972 Delhi 142; Kariyappa v. Haladappa AIR 1989 Karnataka 163; Dharam Pal v. Ami Lal 1992 PLJ 413, and Mangal Singh v. Man Singh, 1994(2) PLR 734.

6. Petitioners have challenged two orders passed by learned Executing Court in this revision petition, i.e., orders dated 12.10.2009, Annexure P7, and 29.5.2010, Annexure P9. Vide order dated 12.10.2009, Annexure P7, objection petition filed by petitioners judgment debtors was dismissed by learned Executing Court by observing as under:

“7. Now the judgment debtor has raised the objections against the execution of the said decree that they are the owner of the passage qua which they have also filed a civil suit and no decree can be executed against the true owner. The decree holder has also placed on record a copy of order dated 4.9.2007 passed in Civil Suit No.61 of 9.8.2007 titled as Smt. Murti Mittal v. Smt. Shakuntla Shukla, vide which the defendant (judgment debtor/objector herein) is restrained from creating any hindrance in raising any construction by plaintiff (decree holder herein) from opening door/window/ ventilators towards common street in question. A copy of order dated 1.10.2007 passed by Sh. S.K. Shori, Additional District Judge, Ambala, in appeal against the said order dated 4.9.2007 has also been placed on record vide which the appeal of the defendant (judgment debtor herein) was dismissed against which the defendant (judgment debtor herein) preferred a revision