Judgment / Order

12/09/2022

This writ petition is filed by the petitioners being aggrieved with the order dated 13.4.2022 passed by the Civil Judge, Jaisalmer (for short ‘the Executing Court’), whereby the application filed on behalf of the respondent- decree holders under Order 21 Rule 32(5) CPC has been allowed and it is directed that the possession of the disputed property be restored to the decree holders (respondent Nos.1 to 8) with a further direction that the petitioner – Municipality shall pay compensation to the tune of rupees one lakh to the respondent-decree holders. Certain consequential directions have also been issued.

Brief facts of the case are that one Shri Vallabh has filed a suit for permanent injunction against the petitioners in the court of Civil Judge, Jaislamer in the year 1993 claiming that his father Shri Laxmi Chand had purchased a plot measuring 80 x 80 feet situated in Jaisalmer, description of which is given in the plaint, from the District Magistrate Jaisalmer on 6.12.1951 and, thereafter, Patta was issued with respect to the said plot and since then, earlier his father and thereafter the plaintiff - Shri Vallabh is in possession of the said plot where he is operating a petrol pump. It is alleged that the petitioner – Municipality is trying to dispossess the plaintiff illegally from the said plot and, therefore, a decree for permanent injunction may be issued in his favour restraining the petitioner - Municipality from dispossessing him from the said plot.

The suit filed by Shri Vallabh came to be dismissed by the Civil Judge vide order dated 28.5.2001. Being aggrieved with the same, Shri Vallabh has preferred an appeal in the court of Distt. Judge, Jaisalmer and the Distt. Judge, Jaisalmer vide judgment and decree dated 22.9.2001 has allowed the said appeal and decreed the suit filed by Shri Vallabh and restrained the petitioner - Municipality by way of permanent injunction from dispossessing the plaintiff - Shri Vallabh from the plot in question without following the due procedure.

It is not in dispute that the second appeal preferred by the petitioners against the judgment and decree dated 22.9.2001 passed by the Distt. Judge, Jaisalmer was summarily rejected by the High Court vide judgment dated 16.5.2005.

Thereafter, the respondent-decree holders have filed an application under Order 39 Rule 2A CPC before the Distt. Judge, Jaisalmer in the year 2008 alleging that they have been illegally dispossessed by the petitioner – Municipality from the disputed property. The Distt. Judge, Jaisalmer vide order dated 23.9.2009 has committed the matter to the Civil Judge while holding that the same is not maintainable before it. The Civil Judge vide order dated 5.5.2010 has rejected the said application while holding that the same is maintainable only when the suit is pending but since the suit has been finally decided, the application is liable to be dismissed.

In the meantime, the respondent-decree holders have preferred an execution application under Order 21 Rule 11 (2) CPC on 5.9.2008 before the Executing Court. During pendency of the said application, another application under Order 21 Rule 32 (5) CPC was preferred on behalf of the respondent-decree holders on 5.10.2010 with a prayer to restore the possession of the disputed property and to attach the property of the department with a further direction to pay them compensation.

The Civil Judge vide order dated 30.9.2013 has dismissed the application under Order 21 Rule 11 (2) CPC filed by the respondent-decree holders as being not maintainable, however, simultaneously it has ordered that the application filed on behalf of the respondent- decree holders under Order 21 Rule 32 (5) CPC be registered separately for the purpose of inquiry. Ultimately, vide order dated 13.4.2022, the Executing Court has allowed the application under Order 21 Rule 32 (5) CPC filed on behalf of the respondent-decree holders, which is under challenge in this writ petition.

Assailing