Full Judgment Text
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PETITIONER:
JAI DAYAL & ORS.
Vs.
RESPONDENT:
KRISHAN LAL GARG & ANR.
DATE OF JUDGMENT: 06/11/1996
BENCH:
K.RAMASWAMY, G.B.PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
The 6th Day of November, 1996.
Present :
Hon’ble Mr. Justice K. Ramaswamy
Hon’ble Mr. Justice G.B. Pattanaik
Mr. Rani Chhabra, Advocate (N.P) for the Appellant No. 2-5.
Mr. D. Goburdhan, Advocate for the Appellent No. 1.
Mr. R.K. Maheshwari, Advocate for the Respondent.
O R D E R
The following Order of the Court was delivered :
O R D E R
This appeal by special leave arises from the judgment
of the learned single Judge of the Allahabad High Court,
made on 9.4.1980 in Execution Second Appeal No.789 of 1969.
The admitted facts are that the appellant had filed
Suit No. 1023/61 against the respondent for perperual
injunction and also for mandatory injunction restraining him
from blocking passage of 5 ft. between the house of the
house of the appellant and that of respondents and for
removal of the obstruction. It was decreed by the trial
Court on March 30, 1964 which was confirmed by the appellate
Court on December 10, 1964. Thus, the decree of mandatory
injunction to remove the obstruction and perpetual
injunction restraining the respondent from blocking the
paeeage of the appellants through the "QOADEMLP area" of the
land shown in the decree of the trial Court. When the
appellants had filed an applecation for execution under
Order 21, Rule 32, CPCin Execution Case No. 2903/65, the
respondent had removed the obstruction and consequently, the
execution case was struck out on February 25, 1966 on the
finding that the passage had been cleared and obstruction
was removed. That was also upheld by the appellate Court by
dismissing CA No.65/66 on March 6, 1967.
It is now an admitted position that subsequently a shop
was constructed which is an obstruction to the passage in
question and it had completely blocked the passage. The
appellant, therefore, filed again an execution application
under Order XXI, Rule 32 in E.C.No.42/1967. The exwcuting
Court had directed, over-ruling the oblections of the
respondents, to remove the obstruction completely and issued
injunction not to disobey the mandatory injunction. It was
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issued by way of attachment of the property and detention of
the respondents in cinil prison if only the obstruction is
not removed. On appeal, the Additional District Judge by his
judgment dated March 10, 1969 confirmed the same. In the
execution second appeal, the learned Single Judge reversed
the decree and remitted the matter on the finging that under
Section 22 of the Easements Act, it is required to be seen
whether the obstruction has caused enjoyment of easementary
right. Since that was not done, the courts below have
committed error of law in directing removal of the
obstruction and also the attachment of the properties and
direcion to keep the respondents in civil prison.
The question is: whether the view taken by the High
Court is correct in law? One of the defences taken by the
respondent was that he had sold the property to third
parties who had constructed the shop and thus it is not he
who caused obstruction. That evidence was not accepted and
it was found that the respondent had constructed the shop in
the disputed area. Thereafter, it is recorded as a fact as
under:
"The next question for
decision in this appeal is whether
the disputed construction has
blocked the passage. In support of
his contention on this point the
decree holder has examinde himself
and has stated on oath thaaat by
disputed construction the passage
at QOADEMLP shown in the decree has
been compsetely blocked. The
statement of the decree holder is
corroborated by the report of the
commission dated 13.5.1937. The
report and map of the commission
filed in the execution case show
that the said passage has been
completely blocked by the disputed
construction and the place of dirty
water of plaintiff’s house has been
stopped. The judgment debtors Babu
examination that by the disputed
completely blocked."
The appellate Court, thereafter, found that though the
decree on the earlier occasion was stisfied, since by his
conduct he had constructed shop obstructing the free flow of
passagem an application for exection under Order XXI, Rule
32, CPC could be laid to enforce th injunction granted in
the suit in respect of the aforesaid area.
It is contended that the High Court has proceeded on
the primise that the rights of parties ore required to be
adjudicated under Section 22 of the Easements Act. the view
of the High Court is clearly in error. It seen that once the
decree of perperual injunction and mandatory injunctiion has
becom final, the judgment-debtor is required to obey the
decree. In whatever form he obstructs, it is liable to
removal for violation and the natural consequence is the
execution proceedings under Oreder XXI, Rule 32, CPC which
reads as under;
"(3) Where any attachment under
sub-rule (1) or sub-rule (2)has
remained in force foe sis moints if
the judgment-holder has applied to
have the attached property sold,
such properyt msy be sold; out of
the proceeds the Court may award to
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th edecree-holedr such compensation
as it thinks fit, and shall pay the
balance, if any, to the judgment-
debtor on his application. Where
the judgment-debtor has obeyed the
decree and paid all costs of
executing the same which he is
bound to pay, or where, at the end
of six months from the date of the
attachment, no application to have
the prpoperty sold has been made,
or if made has been refused, the
sttachment shall cease."
In this case, since the attachment was made for
enforcement of the perpetual injunction and mandatory
injunction, the decree is required to be complied with. In
case he did not obey the injunction under Clause (1) of
Order 32, the judgment-debtor is liable to detention in the
civil prison and alwo to proceed against the property under
attachment.
The question of Section 22 of Easement Act would arise
only if the question arises for the first time. However
having allowed the perpetual injunction and mandatory
injunction granted by the trial Court to become final, it
would be no defence for the respondentto plead that he has
not obstructed the passagd etc. or that, as found by the
High Court, a part of the property in which the present shop
was constructed was not part of the property in the otiginal
suit. In other words, if a judgment-debtor has suffered the
decree, no attempt to circumvent the perperual injunction
and mandatoty injunction, can be permitted. If the decree-
holder makes any consturction clubbing the other adjacent
property, property which is part of the subject matter in
theearlier suit, a party cannot and should not, by his
action, be permitted to drive the decree for another round
of adjudication of the rights in second suit to be settle
afresh. In other words, giving such a liberty will amount
own hands and drive the decree-holder to another suit. It
can never be facilitated to circemvent the law and relegate
the party for tardy process of the civil action. What is
needed is an opportunity to obey the injunction. Non
complianc is a continuing disobedience entailing penal
consequences. A separate fresh suit is barred under Section
49 of the CPC. Under these circumstances, the view of the
High Court is clearly in error and appeal is accordingly
allowed. The judgment and order of the High Court stand set
aside and that of the trial Court and the appellate Court
stand restored. No costs.