IMPORTANT POINT
Whether execution should be made on recovery of possession by a decree holder where a decree of permanent injunction has been granted is no longer res integra in new rulings in 1993(1) OLR 139.

I. Mahanty, J.—The petitioner in the present writ application has sought to challenge the Order dated 31.3.1998 passed by the District and Sessions judge, Nayagarh in C.R. No. 36/11 of 1997 allowing the said revision and reversing the Order dated 23.12.1996 passed in M.J.C. No. 30/1996 under Section 47 of the Code of Civil Procedure arising out of Execution Proceeding No. 3 of 1994 by the Court of Civil Judge (Junior Division), Nayagarh who had allowed the objection of the petitioner under Section 47, CPC and hold that the decree passed in O.S. No. 24 of 77, was inexecutable.

2. Learned counsel for the petitioners has challenged the impugned order passed by the Additional District and Sessions Judge, Nayagarh on the following grounds:

(A) That the Execution case is barred by limitation as envisaged under Article 136 of the Limitation Act.

(B) That the decree sought to be executed being purely for injunction, the relief of recovery of possession is beyond the scope of the executing Court.

(C) That the decree for permanent injunction is to be executed in the manner contemplated under Order XXI, Rule 32, CPC and delivery of possession cannot be given as provided under Order XXI, Rule 35, CPC.

3. It is averred in the writ application that the property described in Scheduled ‘A’ of the petition were sold by registered sale deed dated 9.2.1972 by one Hadibandhu Palei in favour of OP No. 3, namely, Dayanidhi Dash and in the sale deed it was stipulated that consideration would be paid at the time of endorsement of registration ticket in favour of the purchaser OP No. 3 and from the date of payment title will pass to the purchaser. It is alleged that payment of consideration was not made to the vendor and consequently, registration ticket was not endorsed in favour of the purchaser and it is claimed that as a consequence thereof, title to the Schedule ‘A’ property did not pass on to the purchaser Dayanidhi Dash (OP No. 3). Subsequently, the said sale deed dated 9.5.1972 was cancelled by the registered deed of cancellation dated 6.11.1974. It is further contended that as the sale deed in favour of Dayanidhi Dash was cancelled, the original owner and his successors in interest, continued to remain in possession of the ‘A’ Schedule land and converted those land to homestead land and raised residential houses thereon and lived there along with their family members. It is further contended that the petitioners continued to pay rent and have been obtaining necessary rent receipts in their names. The petitioners alleged that Sri Dayanidhi Dash (OP No. 3) taking advantage of the locality of the petitioners filed a suit for injunction against the petitioner No. 1 and opposite party No. 4 and others. The said suit, i.e., T.S. No. 24/77 was decreed on 31.3.1981. It is contended that it is this decree dated 31.3.1981 which is now sought to be executed. Therefore Execution case No. 3/1994 was filed on 13.9.1994. In the said Execution case, opposite party No.3 (petitioner therein) sought to relief under Order XXI, Rule 3, CPC and also a delivery of possession under Order XXI, Rule 35, CPC and alleging that judgment debots have re-entered possession of the dispute property on 16.8.1994. The present petitioners upon entering the suit proceeding, filed objection contending, inter alia, that the Execution Case is not maintainable in law and the Executing Court allowed the said objection petition filed by the petitioners by executing the ground stated therein and come to hold that the decree was in-executable. It is this order by the Executing Court which came to be reversed by the Revisional Court under impugned Annexure I which is the subject matter of challenge in the present writ application on the ground noted hereinabove.

4. Mr. Mohapatra, learned counsel for opposite party No.3, on the other hand, submitted that the writ petitioners 1 and 2 and opposite party No. 4 (brother of petitioner No. 1) are judgment debtors in the decree