ORDER
As a result suit No. 216/71 filed by Achaleshwar is decreed with costs and suit No. 290/71 filed by Rajiya is dismissed with costs. The Civil Misc. application No. 13/72 is allowed and non-applicant Rajiya is held guilty under Order 39 Rule 2(3) C.P.C. for violation and breach of the injunction of Court granted on 10.7.71 and is taken in custody to undergo two months civil prison. Rajiya is further directed to restore the possession of the disputed plot to Achaleshwar.
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Munsif, Bhinmal
7. It may also be pertinent to mention here that just one day prior to pronouncement of the said judgment on 22.10.1974, the plaintiff Achleshwar had filed an application seeking to add the relief of possession on which order was passed by the learned trial Court on the said application itself rejecting the said application. Be that as it may, all these aspects appear to have been considered by this Court while rejecting the revision petition No. 85/1996 on 5.11.2003 - Raja Ram v. Shekhar which was directed against the order dtd.18.10.1995 passed by the learned Executing Court in execution case No. 17/94, whereby the objections raised by the judgment debtor were rejected by the Executing Court. This Court held as under:
The fact, that Rajiya forcibly acquired the possession over it as next-door neighbour of disputed plot is proved beyond doubt. Application of Rajiya under Order 39 Rule 1 and 2 was also rejected on 24.7.1974, and he was not even continued by the Court to keep possession, then how he acquired possession, it is nothing, but as said by all the witnesses, and more specifically by Achleshwar, that he forcibly acquired possession over the plot for which he is required to vacate. Though the amendment application of plaintiff Achleshwar, for restoration of possession, has been disallowed at the fag end of the argument, on the ground that it will cover his misc. application, yet he is entitled to get this relief on account of 'any other relief as deem proper....' With these findings, the decree dt.22.10.1974 was passed, and by that very order the present petitioner was ordered to be punished under Order 39 Rule 2(3), for the breach of injunction, and to undergo two months' civil prison. Against this judgment dt.22.10.1974 and the decrees, three appeals were filed by the present petitioner, and vide judgment and decree dt. 10.2.1977, the two appeals challenging the judgment and decree passed in the two Civil Suits No. 216/71 and 290/71 were dismissed. However, in appeal filed against the order passed in Civil Misc. Case No. 13/72 seeking to challenge the order of sending the defendant to civil prison, was heard by the learned lower Appellate court, and vide order dt. 14.10.1976, that was allowed, and the matter remanded back, to the learned trial court, with a direction to independently enquire into the mater, and give independent decision. Learned Counsel for the present respondent has made available to me a photo stat copy of the certified copy of the order, and a perusal thereof shows, that the sole grievance raised, by the present petitioner, therein was that despite separately registering the plaintiffs application dt. 13.1.1972, it was not independently considered, and without realising the seriousness of the implications, while passing the judgment the present petitioner was sent to civil prison without independently giving opportunity to defend. Thus, the whole thrust of the order dt. 18.10.1976 was on the seriousness of the order of the ' learned trial court, whereby the present petitioner was ordered to send to civil prison, in the proceedings under Order 39 Rule 2(3). At the cost of repetition it may be recapitulated here that in the judgment dated 22/10/74 the learned Trial Court had passed the decree for restoration of possession to the plaintiff, not on account of, or as a part of punishment for the defendant's willful disobedience of the injunction, but by holding that it is apparent from the above discussion that Rajiya was not in possession over the disputed plot, prior to the execution of sale deed and granting of an injunction by the Court in favour of Achleshwar, so also that the fact, that Rajiya forcibly acquired the possession over it as next-door neighbour of disputed plot is proved beyond doubt, and that the application of Rajiya under Order 39 Rule 1 & 2 was also rejected on 24.7.74, and he was not even continued by the Court to keep possession, then how he acquired possession, it is nothing, but as said by all the witnesses, and more specifically by Achleshwar, that he forcibly acquired possession over the plot for which he is required to vacate. Then it was consciously noticed that though the amendment application of plaintiff Achleshwar for restoration of possession, has been disallowed at the fag end of the argument, on the ground that it will cover his misc. application, yet he is entitled to get this relief On account of 'any other relief as deem proper....
After remand, the learned trial court vide order dt.20.4.1978, again joined the petitioner guilty, and again passed the order to send the petitioner to civil prison for two months, and some how also gave the direction for restoration of possession. Against that order, again an appeal was filed before the learned lower appellate Court, and the same was decided vide order dt.27.5.1980. It may also be noticed here that in the interregnum period the petitioner filed Second Appeals Nos. 121/77 and 122/77. During pendency of these appeals, the order dt.27.5.1980 came to be passed, which has given rise to the present litigation, and the complications
8. This Court took notice of all the facts and submissions which are now being raised before this Court and dismissed the revision petition filed by the present petitioner on 5.11.2003 further holding as under:
Obvious it is not in dispute that in proceedings under Order 39 Rule 2(3) the Court had no jurisdiction to direct delivery of possession, likewise it cannot be said that in the judgment dt.22.10.1974, the delivery of possession was ordered in exercise of power under Order 39 Rule 2(3). Likewise in view of the order dt. 18.10.1976, even after remand, it was not required of the learned trial court, nor was it permissible to the learned trial court, in proceeding under Order 39 Rule 2(3), to direct the delivery of possession back to Achleshwar, and therefore, he was only to decide the question, as to whether the defendant is guilty of the disobeying the interim injunction order dt.10.10.1971, and if the answer is in the affirmative, then what punishment was to be inflicted, or what action is required to be taken. As against this, the learned trial court while passing the order dt. 20.4.1978, was clearly in error, in directing the delivery of possession to Achleshwar. In that view of the matter, that order could not even otherwise sustain, irrespective of the fact as to whether the petitioner was found guilty for disobedience, or not.
In that view of the matter, when the learned lower Appellate Court found the petitioner to bo not guilty of disobedience, the mere fact that the learned lower Appellate Court expressly proceeded to set aside the order of the learned trial court, directing delivery of possession, can in no manner have any adverse effect, on the decree dt.22.10.1974, passed by the learned trial Court, and affirmed by the Appellate Courts. The revision thus has no force, and is hereby dismissed. The Executing Court is directed to expeditiously proceed With the execution petition. The parties shall bear their own costs of this revision.
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(N.P. Gupta)J.
9.Thus, a reading of decree dtd.22.10.1974 and the judgment of this Court dtd.5.11.2003 amply makes it clear that the directions to restore the possession could not be read as a direction while dealing with the application under Order 39 Rule 2 (3) C.P.C. as contended by the learned Counsel for the petitioner - judgment debtor. Said directions was in pursaunce of decree in suit for injunction No. 216/1971 itself and therefore, mere allowing of the appeal of the present petitioner on 27.5.1980 in the proceedings under Order 39 Rule 2(3) C.P.C. could only mean that the said judgment debtor was not required to be sent to jail for alleged violation of Court's directions granted in temporary injunction matter. The said decree dated 22.10.1974, therefore, did not require any amendment. Though the said confusion appears to have arisen because portion of the decree dtd.22.10.1074 quoted above 'Rajaram is further directed to restore possession of the disputed plot to Achleshwar' is at the end of the order after all the three proceedings, namely, Suit No. 216/1971, 290/1971 and Civil Misc. application No. 13/1972 were disposed of, but merely because said quoted portion is written by the learned trial Court after disposing of the civil misc. application No. 13/1972 under Order 39 Rule 3(2) C.P.C. after the two suits, it could not be said that this direction was to be read a part of the order while disposing of the application under Order 39 Rule 2(3) C.P.C. The said order is a part of the decree while deciding suit No. 216/1971 itself. Therefore, there was no question of amendment of the decree dtd. 22.10.1974 in any manner which was obviously beyond the jurisdiction of the Executing Court and therefore, this objection was rightly rejected by the learned trial Court by the impugned order dtd. 17.8.2005.
10.The quoted portion of this Court in judgment dtd.5.11.2003 also squarely shows that this Court had expressed in clear terms that the present petitioner - judgment debtor Raja Ram had forcibly taken possession of the said property during the pendency of the suit and therefore, the direction to restore back the possession could not be washed away while dealing with the application under Order 39 Rule 2(3) C.P.C. Therefore, the order of the appellate Court dtd.27.5.1980 does not and cannot enure to the benefit of the present petitioner - judgment debtor in any manner and the part of the decree dtd. 22.10.1974 directing him to restore possession of the plot in question to the plaintiff did not require any amendment with the passing of the order dtd. 27.5.1980. The effort of the present petitioner to hang upon the said favourable order in his favour on 27.5.1980 does not undo the portion of the decree directing him to restore the possession of the disputed property. Though in light of what has been stated above, the application filed by the plaintiff on 21.10.1974 seeking to add the relief for possession also deserved to be allowed, but this rejection does not alter the decree itself. The said order read as a whole is as under:
P. by Shri S.L. Sharma, Adv.
Heard the arguments. The application for violation of injunction issued by the Court and to restore the possession as it was prior to the institution of the suit has already been filed on 13.1.72 and upon which the Civil Misc. Case No. 13/72 was registered. The decision of the said application was kept pending with the final decision of the suit vide order of this Court dt.9.5.72 as such this application is of no force and as such it is hereby rejected.
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Munsif, Bhinmal
Thus, the said rejection of application on 21.10.1974 was rather for technical reason that the Court felt that misc. Application No. 13/1972 itself was kept pending and was being decided on next day 22.10.1974 itself.
11. Therefore, this Court is of the clear opinion that the present petitioner is not entitled to any relief in the present revision petition and having lost in original suit No. 216/1971 right upto the High Court when his second appeal was dismissed on 11.5.1992 by this Court and also having lost in his revision petition No. 85/1996 on 5.11.2003, the effort of the present petitioner again to seek amendment of the decree and having failed before the learned trial Court on 17.8.2005, approaching this Court by present revision petition cannot be appreciated.
12. The revision petition being devoid of merit, the same is accordingly dismissed. The learned Executing Court is directed to execute the decree expeditiously now not later than a period of two months from today, in any case. No order as to costs.