BASHETTI BHAGAWANTHA RAO Vs. NATHIRI YELLAIAH

JUDGEMENT

(1.) The Civil Revision Petition is filed by 4th petitioner-4th plaintiff in E.P.No.195/99 in O.S.No.352/87 on the file of Principal Junior Civil Judge at Karimnagar. The other decree-holders- plamtiffs are impleaded as respondents 4 to 6 in the C.R.P. The 1st respondent is the 1st defendant and the 1st Judgment-debtor in E.P.No.195/99 in O.S.No.352/87 on the file of Principal Junior Civil Judge at Kanmnagar. The said E.P. was filed under Order 21, Rule 32(5) r/w Section 51 and Sections 151 C.P.C. with a prayer to remove the obstruction i.e., structures raised to block the passage by appointing Bailiff of the Court. In execution of the decree in the aforesaid suit E.P.No.41/96 was filed seeking two reliefs i.e., attachment of movables and for recovery of costs and another relief for detention of Judgment- debtor in civil prison and the said E.P.No.41/ 96 was allowed on 13-7-1999 after recording evidence and E.P.No.143/99 was filed for detention of Judgment-debtor No.1 i.e., the 1st respondent in the C.R.P. in civil prison for the maximum period permissible in law till he obeys the decree and the said E.P. was allowed and the Judgment-debtor No. 1 was sent to civil prison by the order dated 2-12-1999 and despite the same the 1st respondent even now is not ready and willing to obey the decree and remove the obstruction i.e., structures raised to block the passage and as such a relief was prayed for appointment of Bailiff to carry out the work to remove the entire obstruction i.e., structures, namely, the gate and other structures made in the said passage shown in the plan annexed to the decree and the E.P. so as to have smooth access to the plot of the decree-holders. The 1st respondent-Judgment-debtor No. 1 had raised an objection that in view of the orders passed in E.P.No.41/96 and E.P.No.143/99 there is nothing further to be executed and he had already undergone civil imprisonment by virtue of the orders passed in E.P.No.143/ 99 dated 2-12-1999 and inasmuch as the decree in O.S.No.352/87 had been already executed and satisfied in terms of Order 21, Rule 32(1) and (2) C.P.C. by ordering attachment and imprisonment, the decree in question is not executable and a further objection was raised that the decree is only a decree of permanent injunction and not a decree of mandatory injunction and hence the E.P. filed under Order 21 Rule 32(5) C.P.C. is not maintainable. No doubt, the construction of two rooms by his two sons also had been referred to in the objections. The Court below after hearing both the parties had dismissed the E.P. and the 4th decree-holder-4th plaintiff alone had preferred the C.R.P. aggrieved by the said order.

(2.) Sri P.V.Vidyasagar, the learned Counsel representing the Revision Petitioner in a calm, but emphatic way, had made the following submissions. The view taken by the Court below is rigid view and the Courts are expected to be flexible and adopt an approach by virtue of which it is seen that the orders and decrees of the Courts are well honoured. The learned Counsel also had submitted that these acts complained of are of temporary nature and hence on the ground of separate cause of action driving the parties to a separate suit will be unjust and also unsustainable in law. The learned Counsel had drawn my attention to the provisions of Order 21, Rule 32(1) and 32(5) C.P.C. and also the illustration and had contended that the language of Order 21, Rule 32(5) C.P.C. is wide enough to include the execution of not only mandatory injunctions, but also prohibitory injunctions as well. The learned Counsel also had placed strong reliance on Kilari Pedda Appalaswamy v. Bhagivilli Venkataswamy (CMASA 68/75 dated 22-4-1976, 1976 ALT 60 (NRC)) and also Harihar Pandey v. Mangala Prasad Singh and others, AIR 1986 All. 9. The learned Counsel also had tried to distinguish the decisions of other High Courts and also of our High Court on this point on facts and had stressed that the obstructions in the present case are temporary in nature and hence such constructions can be ordered to be removed even by executing a decree for permanent injunction and it cannot be said to be the intention of the Legislature that for every obstruction and trivial act of the opposite party in the case of a perpetual injunction and the violation or breach thereof had been complained of driving the party to a separate suit will not only cause much hardship and it is also against justice and equity and at any rate by exercising even the inherent powers under Section 151 C.P.C. the Court below should have exercised the power of appointing the Bailiff in a matter of this nature.

(3.) Sri Madhava Rao, the learned Counsel representing the 1st respondent had made elaborate submissions relating to the nature of the passage and other factual details. The learned Counsel also had drawn my attention to the decree in O.S.No.352/87 and also the relevant paragraphs in the Judgment. The learned Counsel had contended that inasmuch as the decree for perpetual injunction already had been executed, further execution does not lie. The learned Counsel had placed strong reliance on several decisions in this regard, like, Rambrahma Sastri v. Lakshminarasimham, AIR 1957 AP 44, Y. Lakshmaiah v. Esso Eastern Inc. and others, AIR 1974 AP 32, Evuru Venkata Subbayya v. Srishti Veerayya and others, AIR 1969 AP 92, Sarup Singh v. Daryodhan Singh, AIR 1972 Del. 142 and also Kariyappa v. Haladappa, AIR 1989 Karn. 163.