NILAMANI ALIASBISWAL Vs. KRISHNA KUMAR KAMANI

JUDGEMENT

(1.) The judgment-debtors in C.M.A. No. 11 of 2005 pending in the Court of the learned Civil Judge (Senior Division), First Court, Cuttack have filed this writ application challenging the order dated 19-4-2006 passed by the learned Civil Judge rejecting their application filed under Section 47 of the Code of Civil Procedure.

(2.) The judgment-debtors have filed C.S. (I) No. 418 of 2002 in the Court of the learned Civil Judge (Senior Division), First Court, Cuttack for declaration of their title, confirmation of possession over the suit land and for permanent injunction. The opposite parties who are defendants in the suit filed a counter claim seeking for a mandatory injunction. The suit filed by the petitioners was dismissed and the counter claim filed by the opposite parties was allowed by judgment- dated 25-8-2004. The aforesaid judgment and decree was challenged in appeal and the appeal was also dismissed. After dismissal of the appeal, no further appeal was carried and execution case was levied by the opposite parties on the basis of the decree passed by the learned Civil Judge on the counter claim. In the said Execution Case, the petitioners filed an application under Section 47 of the Code of Civil Procedure challenging executability of the decree on the ground that the decree being one for mandatory injunction, the same cannot be executed and therefore prayed to drop the proceeding. The said petition having been rejected, this writ application has been filed.

(3.) The learned counsel for the petitioners challenges the order on the ground that a decree for permanent injunction is not executable and the Court has to take recourse to Order 21, Rule 32 of the Code of Civil Procedure for violation of an order of mandatory injunction. According to the learned counsel, in case of such a decree the Court cannot take recourse to Order 21, Rule 35 of the Code of Civil Procedure. Shn B. H Mohanty, the learned counsel appearing for the opposite parties, on the other hand, submitted that even if the Court is required to take recourse to Order 21, Rule 32 of the Code of Civil Procedure, the Execution Case shall be maintainable for the purpose of eviction in view of the provisions contained in Order 21, Rule 32, sub-rule (5) of Code of Civil Procedure.