Willful disobedience under Order XXI Rule 32 CPC requires strict proof. If a prohibitory injunction against construction is conditional upon partition, the completion of partition allows the parties to raise construction on their allotted shares without violating the decree.

Whether approved for reporting?¹Whether reporters of Local Papers may be allowed to see the judgment?

Jiya Lal Bhardwaj, Judge

(Oral)

1. The petitioner has laid challenge to an order dated 15.07.2024, passed by the learned Senior Civil Judge, Court No.1, Mandi, District Mandi, H.P. (for short “trial Court”), whereby the execution petition preferred by the petitioner under Order 21 Rule 32 of the Code of Civil Procedure (for short CPC), registered as Execution Petition No. 28/18/17, titled, Roop Lal vs. Mohan and others, has been dismissed.

2. The facts as emerge from pleadings are that the petitioner/plaintiff (hereinafter referred as “the petitioner”) filed a suit for Permanent Prohibitory Injunction against respondent No.1 and predecessor-in-interest of respondents No.2 to 7/defendants (hereinafter referHred as “the respondents”). The said suit was registered as Civil Suit No. 46 of 2012, titled, Roop Lal vs. Mohan and another. The learned Civil Judge (Jr. Division), Court No.1, Mandi, H.P., decreed the aforementionetd Civil Suit and the respondents were restrained from changing the nature by way of raising construction over the suit land comprised in Khewat No.282, Khatauni No.353, Khasra No.1097, 1168, Kita-2, measuring 15-14-03 bighas situated in Muhal Mandal, Hadbast No. 202, Teshhil Sadar, District Mandi, H.P., till the suit land is finally partitioned.

3. The petitioner thereafter filed an application under Order XXI Rule 32 of CPC against the respondents, alleging therein that the respondents despite the decree passed by the learned trial Court, had started raising construction over the valuable portion of suit land in sheer violation of the decree passed by the Court. It was further averred that the respondents had filed an application for partition of land before the Assistant Collector First Grade, Balh, District Mandi, H.P., and had procured a partition order in their favour on 23.12.2016. However, no share to the petitioner and his other co-sharers have been allotted in the said partition order and thus, they preferHred an appeal against the said order before the Sub Divisional Collector, Balh, who, vide order dated 31.01.2017, stayed the operation of the partition order dated 23.12.2016. It was alleged that since the retspondents had disobeyed the judgment and decree passed by the learned trial Court, intentionally and willfully, they are liable for contempt of Court. Further the respondents are liable to be detained in the civil prison and their property be also liable to be attahched till the decree is obeyed and the suit land is restored to its original position.

4. The respondents filed objections to the execution petition, taking preliminary objections that the execution petition was not maintainable; the petitioner has no right, title and interest to file the petition; the petitioner has not approached the Court with clean hands and suppressed the material facts; no enforceable cause of action against the respondents and the petition has been filed on false, frivolous and vexatious grounds. On merits, it was pleaded that respondent No.1 and his predecessors had filed partition application, and the petitioner and other co-sharers were duly served. Thereafter, after following due process, the mode of partition was issued andH the shares of all the co-sharers were separated on the spot, according to their possession. It was only after the partition order, the respondents raised construction of the house, on their land, which was all