SHETH HASMUKHLAL JIVANLAL Vs. GENERAL MANAGER

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order dtd. 12/4/2013, passed below Exh. 1 in Regular Execution Petition No. 8 of 2006, whereby, learned Principal Senior Civil Judge, Surendranagar, on technical ground, dismissed the Execution Petition.

(2.) The facts and circumstances giving rise to file the present petition is that, the judgment and decree was passed in favour of the present petitioners and the respondent - Union of India, Western Railway, permanently restrained from entering and occupying the suit land. It is the case of the petitioner that despite the permanent injunction, the respondent Western Railway in violation of the order, entered into the suit land and damaged the fencing put up by the petitioners upon the suit land and thereby, committed a breach of order of permanent injunction. The Execution Petition No. 8 of 2006 in RCS No. 12 of 1994, was filed under Order 21 Rule 32 of the CPC to take necessary action against the officials of the Western Railway with a specific prayer to detain them in the civil prison. The learned Executing Court after hearing the petitioners, dismissed the Execution Petition and while dismissing the petition, the court recorded that, the prior permission of the Court for the detention of the officers in the civil prison as provided under Order 21 Rule 32, has not been obtained.

(3.) Heard learned counsel Mr. Rohan Majmudar for Mr. N.K. Majmudar for and on behalf of the petitioners. He submitted that, the Execution Court committed patent illegality and ignored the settled position of law and failed to exercise its jurisdiction vested on the court. He further submitted that, in order to establish prima- facie illegal action on the part of the officers of the Union of India - Western Railway, the petitioners had applied before the Court for local inspection and accordingly, Court Commissioner was appointed and in the presence of the parties, local inspection was made and same has been placed on record by the Commissioner. He urged that, there is no requirement to obtain prior approval of the Court as observed by the Court. In these circumstances, he submitted that the impugned order is not sustainable in law.