Judgment:
Rakesh Kumar Jain, J.
1. This appeal is directed against order of the Additional Civil Judge (Sr. Division), Fatehgarh Sahib dated 4.6.2008 and the order of the District Judge, Fatehgarh Sahib dated 3.3.2009, whereby objections filed by the appellant-Kapoor Singh were dismissed.
2. The brief facts of the case are that Sarwan Singh son of Bishan Singh (hereinafter referred to as 'judgment debtor') entered into an agreement to sell dated 16.5.1988 with one Om Parkash son of Bhiwani Ram (hereinafter referred to as 'decree holder') land falling in Khewat/Khatoni No. 55, Khasra No. 112 (8-10) 113 min. (2-0) total measuring 10 Bighas 10 Biswas situated in Village Khoje Majra, Tehsil & District Fatehgarh Sahib, Rs. 8,000/- per bigha after receiving earnest money of Rs. 50,000/-. The sale deed was to be executed by judgment debtor in favour of the decree holder on or before 30.5.1989. Since the judgment debtor did not executed the sale deed as stated in the agreement, therefore, the decree holder filed a Civil suit No. 657 of 16.9.1991 titled as Om Parkash v. Sarwan Singh for specific performance and permanent injunction which was decreed by Sub Judge, 1st Class, Fatehgarh Sahib on 22.10.1994. The decree passed in the suit reads as under:
It is hereby ordered that the suit of the plaintiff is decreed for specific performance of Agreement to Sell Ex.P-54 dated 16.5.1988 by way of execution and registration of sale deed regarding the land in dispute by the defendant in favour of plaintiff on receipt of balance amount of consideration of Rs. 34,000/- (Rs. 34,000/-) with costs and also for permanent injunction restraining the defendant from alienating the suit land to anybody else except the plaintiff and dispossessing the plaintiff from the suit land.
3. The decree holder filed an execution application dated 29.3.2001 for execution of the sale deed in his favour by the judgment debtor or by way of appointment of Local Commissioner after depositing the balance amount. In execution of the said decree, sale deed No. 356 dated 8.5.2002 was executed and registered in favour of the decree holder in respect-of the land in question. After the execution of the decree and the sale deed, decree holder filed an application dated 22.5.2002 in which it was averred that the judgment debtor had forcibly taken possession and since the decree dated 20.10.1994 was also for permanent injunction, therefore, invoking the power of the Executing Court under Order 21 Rule 32 of Code of Civil Procedure, 1908 (in short 'CPC'), it was prayed that the possession be re-delivered to the decree holder. Since the decree holder filed the aforesaid application, Gurdev Singh one of the brother of Sarwan Singh (decree holder) filed objection petition on 23.5.2002 under Order 21 Rules 58, 89 and 90 of CPC for setting aside the sale deed No. 356 dated 8.5.2002, inter alia, on the ground that the decree holder did not disclose that property in dispute is in possession of the objector (Gurdev Singh) as owner and an electric connection bearing A/c No. A-606 is installed therein for the last more than 18 years in the his name, which was got installed by him on 31.3.1984, it was also alleged that earlier the land in question Vas owned by the judgment debtor but it is in possession of the objector (Gurdev Singh). The judgment debtor had exchanged the land in question with Objector (Gurdev Singh and Kapoor Singh) jointly on the basis of which Mutation No. 1236 was sanctioned on 8.5.1998. Thereafter, the land was partitioned between the Kapoor Singh and the objector (Gurdev Singh) and Mutation No. 1237 was sanctioned. It was, thus, claimed that Objector (Gurdev Singh) is the exclusive owner in possession of the land in question with which judgment debtor had no concern. The decree holder contested the objection petition filed by Gurdev Singh which was ultimately dismissed by the Executing Court vide order dated 8.2.2005 observing that the objections filed by Gurdev Singh are in collusion with Sarwan Singh (judgment debtor) in order to defeat the decree. The objector (Gurdev Singh) filed appeal against the order dated 8.2.2005, which was also dismissed by the Additional District Judge, Fast Track Court, Fatehgarh Sahib vide order dated 10.8.2007 observing that Mutation Nos. 1236 & 1237 which has been entered on the basis on which the objector in claiming the relief against the decree holder are without any basis and moreover, the exchange deed and the partition which were the basis of the mutation were not produced on record. Even otherwise, it was found that the exchange and partition took place after the filing of the suit. While the aforesaid objections filed by the Gurdev Singh were dismissed, the proceedings were continued in the application dated 22.5.2002, whereby the decree holder claimed possession of the land in question in which the Executing Court vide its order dated 23.4.2005 ordered that the decree holder is entitled to get delivery of possession of the land in question and for that purposes warrants for delivery of possession was ordered to be issued. In order to thwart the attempt of the decree holder to regain possession in terms of the order passed on 23.4.2005, the decree holder put forward his other brother Kapoor Singh (appellant) to file objection. The appellant filed practically similar objections in the execution application unsuccessful before the Executing Court as well as the Appellate Court. The decree holder contested the objections filed by the appellant and the learned Executing Court as well as the Appellate Court. The decree holder contested the objections filed by the appellant and the learned Executing Court vide its order dated 4.6.2008 dismissed them observing that the objections have been filed only to delay the proceedings in the present execution which has already become very old. The appellant filed appeal against the order dated 4.6.2008 which too was dismissed by the District Judge, Fatehgarh. Sahib vide his order dated 3.3.2009. The present appeal is, thus, filed by the appellant challenging the order dated 4.6.2008 and 3.3.2009. The only question raised by the appellant in the present appeal is that decree dated 22.10.1994 is for specific performance of agreement to sell dated 16.5.1988 by way of execution and registration of sale deed regarding the land in question and also for permanent injunction restraining the defendant (judgment debtor) from alienating the suit land. It is contended that while deciding issue No. 5 it has already been observed by the Trial Court that possession of the suit land was delivered by the judgment debtor to the decree holder at the time of execution of the alleged agreement to sell and as such suit for permanent injunction was dismissed. It is contended by learned Counsel for the appellant that the sale deed has already been executed; therefore, the decree has been satisfied but the Executing Court has committed an error of law by executing warrants of possession when there is no decree for possession in favour of the decree holder. It is also contended that once the decree has been satisfied, the execution proceedings cannot continue for the purpose of delivery of possession as the Executing Court can not go behind the decree. On these premises even the questions were framed in para 9 of the grounds of appeal. In reply, the learned Counsel for the respondent has vehemently contended that the judgment debtor did not challenge the judgment and decree dated 22.10.1994 which had attained finality. In order to stall the execution proceedings in collusion with his other brother Gurdev Singh and now with Kapoor Singh, identical objections have been filed, which have been dismissed by both the Courts below, therefore, all futile efforts have been made by the judgment debtor to obstruct the execution of the decree in so far as execution of sale deed is concerned and now they have forcibly taken possession in spite Of decree of permanent injunction. Therefore, the respondent decree holder had a right to invoke the provisions of Order 22 Rule 32(5) CPC under which the Executing Court has the jurisdiction to restore possession of the property in dispute which has been taken by the other side in violation of the decree.
4. The learned Counsel for the respondent has relied upon following decisions of this Court in the cases of 'Banwari Lal v. Municipal Committee, Kanina : A.I.R. 2007 P & H 54, 'Curcharan Singh and Anr. v. Gurudwara Shri Singh Sabha (Regd.) : (2004-2) 137 P.L.R. 330 : A.I.R. 2004 P & H 270, 'Inder Singh and Ors. v. Dharma and Ors. 2003(4) R.C.R. (Civil) 246 (P & H), 'Samee Khan v. Bindu Khan : (1999-1) 121 P.P.R. 465 (S.C.), 'Ram Singh v. Sukh Ram (1989)96 P.L.R. 579.
5. I have heard both the learned Counsel for the parties and have perused the record with their assistance.
6. A few facts, which are not in dispute are that the judgment debtor had suffered a decree in Civil Suit No. 657 of 16.9.1991 dated 22.10.1994 in favour of the decree holder. The decree dated 22.10.1994 had two parts (i) The Court had ordered for execution of sale deed, (ii) The Court had ordered for permanent injunction restraining the defendant (judgment debtor) from alienating the suit land to anybody except the plaintiff and dispossessing the plaintiff from the suit land.
7. In execution of the first part of the decree, the sale deed No. 356 dated 8.5.2002 in respect of the suit land bearing 10 Bigha 10 Biswa has already been executed in favour of the decree holder. Therefore, that part of the decree has been satisfied. In so far the objections have been filed by Gurdev Singh (brother of the judgment debtor) under Order 21 Rule 58, 89 and 90 of CPC are concerned those has been dismissed on 8.2.2005 by the Executing Court and the appeal thereof has been dismissed by the Additional District Judge, Fast Track Court, Fatehgarh Sahib on 10.8.2007. The objections filed by the other brother of the judgment debtor, namely, Kapoor Singh (present appellant) on the similar lines as that of the objections filed by Gurdev Singh have also been dismissed by Additional Civil Judge (Sr. Division), Fatehgarh Sahib 4.6.2008 and the appeal has been dismissed by District Judge, Fatehgarh Sahib on 3.3.2009. Now the question arises as to whether on the application filed by the decree holder on 22.5.2002, after the execution of the sale deed dated 8.5.2002, for violation of the second part of the decree of permanent injunction, whereby an application has been made by the decree holder to the Executing Court for delivery of possession of the property in dispute which has been forcibly taken by the respondent, in which warrants of possession has been ordered to be issued vide order dated 23.4.2005, can be allowed in spite of the fact that there is no decree for possession as alleged by the counsel for the appellant.
8. Before adverting to the merits in this case, it is worthwhile to refer to the provisions of Order 21 Rule 32 CPC, which reads as under:
32. Decree for specific performance for restitution of conjugal rights, or for an injunction:
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under Sub-rule (1) or Sub-rule (2) has remained in force for [six months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(4) 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 property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the process aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
[Explanation.- For the removal of doubts, it is hereby declared that the expression 'the act required to be done' covers prohibitory as well as mandatory injunctions.]
9. As discussed earlier, the decree dated 22.10.1994 was in two parts. One concerning the specific performance of the contract and the other concerning restraint order with regard to the forcible dispossession. In respect of the latter part, Order 21 Rule 32(5) CPC, provides that the Court may, in lieu of or in addition to all or any of the processes which are provided under Order 21 Rule 32(1) to (4), direct that act which is required to be done which covers prohibitory as well mandatory injunctions.
10. To my mind, the Act required to be done which is also mentioned in the explanation are prohibitory and mandatory injunction empowers the Executing Court in case of violation of the decree of permanent injunction where the respondents have forcibly taken possession in spite of the decree of injunction. Thus an order of mandatory injunction can be issued for restoration of possession as has been done in the present case. The Courts cannot be a party to the illegal designs of a judgment debtor who wishes to carry on with his illegal possession.
11. The law lies in favour of the interpretation which would prevent multiplicity of the proceedings rather than the one which will generate it. The decree holder is not required to file another suit as he had already obtained a decree in his favour by spending much time and expense. Thus, the Executing Court has the jurisdiction to pass an order on the application under Order 21 Rule 32(5) CPC to restore the possession of land in dispute to decree holder in case the decree of permanent-injunction is violated by the judgment debtor.
12. Similar view has been taken by this Court in the aforesaid judgments relied upon by the learned Counsel for the respondent/decree holder. Thus, taking into account the entirety of circumstances of mis case where judgment debtor has applied all illegal designs to carry on his possession in violation of the decree of the Court which had already attained finality, I find that this is a case where exemplary cost should be imposed upon the appellant. Therefore, the present appeal, which is wholly misconceived and is an abuse of the process of law, is dismissed with costs Rs. 10,000/-.