BHIMA DAS Vs. GANESWAR MAHAPATRA

JUDGEMENT

(1.) Judgment-debtor in an execution proceeding is the appellant challenging the order of the Subordinate Judge, Bargarh, in Misc. Appeal No. 9 of 1975.

(2.) In Title Suit No. 98 of 1955, plaintiff-decree-holder had obtained a decree of injunction against the appellant-judgment-debtor in respect of Hamid Settlement Plot Nos. 2393 and 2395 and the judgment-debtor had been restrained not to obstruct the passage over these two plots. The decree also contained a mandatory direction. The said decree was executed on 15-7-1956 and the obstruction had been removed by the judgment-debtor. Subsequently on the allegation that judgment-debtor again obstructed the passage and thereby violated the order of injunction which had been granted under the decree, the decree-holder initiated the execution proceeding on 16-5-1969 invoking the provisions of Order 21, Rule 32, Civil P. C. The judgment-debtor filed an objection purporting to be one under Section 47, Civil P. C. which was registered as Misc. Case No. 53 of 1970. The learned Munsif by order dt. 8-8 1975 came to hold that the judgment-debtor had violated the order of injunction and rejected the objections filed on behalf of the judgment-debtor. He, therefore, directed that the structures standing on the two plots obstructing the passage of the decree-holder should be demolished and if the judgment- debtor failed to demolish the same within a month then the decree-holder would be at liberty to dismantle the same at the cost of judgment-debtor. He further ordered that the judgment-debtor should be committed to civil prison for a period of seven days for having violated the order of injunction. Against this order, the judgment-debtor carried an appeal and the learned Subordinate Judge who heard the appeal dismissed the same holding that the appeal was not maintainable in view of the amended provisions of the Civil P. C. whereunder an order passed on an objection under Section 47 is not a decree.

(3.) The order that was challenged in appeal before the Subordinate Judge is dated 8-8-1975 and the appeal itself had been filed prior to the amendment to Section 2(2) of the Civil P. C., by Amending Act 104 of 1976, which came into force on 1-2-1977. In that view of the matter the learned Subordinate Judge was not right in holding that the appeal was not maintainable. Mr. Jagadeb Ray, the learned counsel appearing, for the respondents, also fairly conceded this position.