SUBA SINGH Vs. BAGICHA SINGH

JUDGEMENT

(1.) The judgment-debtors have filed this revision petition, against the order of the executing Court, dated 26tb May, 1979, by. virtue of which, under Order 21 Rule 32(1) of the Code of Civil Procedure (hereinafter referred to as the 'Code'), the attachment of the property of the judgment-debtors as well as their detention, has been ordered.

(2.) Bagicha Singh, respondent-decree-holder obtained a decree for permanent injunction against the judgment-debtors on l9th January, 1974, whereby the judgment-debtors were restrained from interfering with the possession of the decree-holder over the land, measuring 35 Kanala 17 Marlas, situated in village Jhanda Bagga Nawan, Tehsil Zira. On 6th December, 1977, the decree-holder filed an application under Order 21 Rule 32 read with Section 151 of the Code, for the enforcement of the said decree, dated l9th January, 1974. It was alleged therein that despite the decree, the judgment-debtors took forcible possession of the land in July, 1974. It was also stated that a similar application was presented earlier for taking action against the judgment-debtors, but the same was consigned to the record room on l5th Mar., 1976, for awaiting decision of a criminal case between the parties. The said criminal case was decided by the Judicial Magistrate 1st Class Zira. on 22nd November, 1977. Since the judgment-debtors have wilfully disobeyed the decree, the same may be enforced under O. 21 Rule 32 of the Code by the detention of the judgment- debtors in civil prison and by attachment of their property. This execution application was opposed by the judgment-debtors and in reply thereto it was stated that the possession of the suit land was given by Bagicha Singh, decree holder, himself and since they took possession. of the land with the consent of the decree-holder, there is no question of enforcing the decree as preyed by him. On the basis of these pleadings, the executing Court framed the following issues:-

(3.) The learned counsel for the judgment-debtors has vehemently argued that the finding of the executing Court that they had taken the possession forcibly, is wrong and illegal, particularly in view of the acquittal order passed by the Criminal Court in their favour on 22nd November, 1974. It was also contended that the decree-holder is estopped to execute the decree because he himself allowed his earlier application to be consigned to the record room and to wait for the decision of the Criminal Court. According to the learned counsel, the proper remedy for the decree-holder to get the possession back is to file e regular civil suit. It was also urged that the application for execution of the decree is barred by limitation because of Article 135 of the Indian Limitation Act, 1963. I have considered all these contentions of the learned counsel, but I do not find any force in either of them. These pleas were never taken in the reply filed by them in the executing Court; nor the executing Court was ever called upon to decide this matter on the said pleas The only question before the executing Court was, whether the possession was delivered by the decree- holder voluntarily as alleged by the judgment-debtors in their reply or it was taken forcibly by them. This being a finding of fact arrived at after considering the evidence on record, this Court will not interfere with the same in its revisional jurisdiction. As regards the question of limitation based on Art. 135. I do not find any force therein. That article is applicable only for the enforcement of a decree granting a mandatory injunction whereas in the present case, the decree is for prohibitory injunction.