GRAM PANCHAYAT BARKATKPUR Vs. SADHU

JUDGEMENT

(1.) The respondent was granted a decree vide judgment dated October 18,1963, restraining the petitioner Gram Panchayat from dispossessing him from the land in dispute. In spite thereof, the Gram Panchayat dispossessed the petitioner in pursuance of an order passed under section 7 of the Punjab Village Common Lands (Regulation) Act. Consequently, the respondent instituted the present proceedings to execute the decree of permanent injection. The executing Court holding that the order of the Collector was without jurisdiction ordered warrant of possession to be issued to put back the decree-holder in possession. Aggrieved thereby the Gram Panchayat has come up in this petition under section 115 of the Code of Civil Procedure.

(2.) The only grievance made against the impugned order by the learned counsel for the petitioner is that the injunction granted by the decree being prohibitory it could be executed only according to the modes provided in sub-rule (1) of rule 32 or Order 21, Civil Procedure Code. The learned counsel for the respondent, to controvert this contention relied on a Single Bench decision of the Calcutta High Court in Ram Charan Sikdur v. Smt. Jogmaya Basu and another, 1978 AIR(Cal) 193, wherein it was held sthat the executing Court was within its right to pass an appropriate order for removal of the obstruction in order to give effect to the decree even in a case where the injunction granted was only prohibitory. There appears to be some conflict on this matter but so far as this Court is concerned, a Division Bench in Murari Lal s/o Ram Sarup Dass v. Nawal Kishore and others, 1961 AIR(P&H) 547, authoritatively ruled that a decree for prohibitory injunction cannot be executed as provided for in Order 21 rule 32(5) and the mode of execution for such a decree is the one laid down by sub-rule (I) of the said rule. No warrant of possession, therefore, could be executed to enforce the decree and the impugned order to that extent is set aside. The executing Court shall, however, be at liberty to enforce the decree in any of the modes provided in rule 32(1) or Order 21, Civil Procedure Code. In the circumstances of the case, the parties are left to bear their own costs.