IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.29474 of 2011

Hadibandhu Palei and another …. Petitioners

-Versus-

Dayanidh Dash and others …. Opposite Parties

Advocates appeared in this case :

For Petitioners : Mr. A.C. Mohapatra, Advocate For Opposite Parties : Mr. D.K. Mohapatra, Advocate

CORAM:

HON’ BLE THE CHIEF JUSTICE

J U D G M E N T

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Date of Hearing and Judgment : 19th September, 2025

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HARISH TANDON, CJ.

1. The present case is a classical example of reminding the off quoted observation of Sir Vivian Bose, an eminent jurist of the

apex Court that “the real trouble starts after getting the decree”.

2. The parties are litigating at the execution stage despite the decree having attained finality. A decree for permanent injunction

restraining the judgment debtors from interfering with the peaceful possession of the decree holder in respect of a subject property was passed by the trial court. Alleging the violation of the said decree for permanent injunction, an execution proceeding was filed under Order 21 Rule 32 of the Code of Civil Procedure (CPC), 1908 wherein the executing court passed an order directing the bailiff to execute the said decree by removing the judgment debtors from the subject property. After the delivery of possession to the decree holder, the order passed by the executing court to deliver the possession was challenged before this Court by the judgment debtors. Pending the said proceeding before this Court, it is alleged by the decree holder that the judgment debtor has again resumed the possession by ousting him from the settled possession thereof. The subsequent application was taken out for delivery of the possession and in the meantime, the proceeding filed before this Court stood dismissed.

2.1 A plea was sought to be taken by the judgment debtors that since the decree holder has divested his right, title and interest in respect of the subject property in favour of a third party, he does not have a subsisting right to enforce the decree for permanent injunction. By the impugned order, the executing court rejected such objection and found that the moment the decree holder is ousted under teeth of the decree for permanent injunction, there is no fetter on the part of the executing court to implement the said decree and restore the possession in favour of the decree holder.

3. Learned counsel for the judgment debtors took a plea that once a decree for permanent injunction is executed and/or implemented by the executing court with the delivery of possession in favour of the decree holder, subsequent dispossession creates a fresh cause of action and restitution of the possession in the same execution case which ended upon recording the full satisfaction is impermissible.

4. This Court does not find any substance in the contention of the judgment debtors after noticing the judgment of the apex Court in case of Jai Dayal and others vs Krishan Lal Garg and another, AIR 1997 SC 3765 wherein it is held that if the decree holder is dragged to an independent proceeding after having dispossessed subsequent to the recording of the satisfaction of a decree would be giving a premium to such unscrupulous judgment debtor who has taken the law in his own hand. It would be burdensome on the decree holder to institute a fresh suit and get the decree again and, therefore, there is no fetter on the part of the decree holder to approach the executing court for due execution of the decree.

5. In view of the law enunciated in the above report, we do not find any incongruity and/or illegality in the judgment of the executing court impugned in the instant proceeding. Apart from the same, it is submitted by the learned counsel appearing for the decree holder that during the pendency of the instant proceeding, the possession has already been given to him by the executing court and,