DES RAJ Vs. SHAVINDER KUMAR

JUDGEMENT

(1.) THIS Revision Petition has been heard at its threshold without notifying the other side. The petition owes its origin to the litigation that has started in the form of a suit, filed as far back as in the early 1985, for a decree of declaration and injunction, in respect of a plot comprising survey number 216/379, situate at village/Estate Hakkal Satwari Tehsil Jammu, culminating in a decree dated 12 -3 -1993. Same having gone un -assailed, attained finality, yet the judgment debtor chose not to obey it, giving rise to a motion, filed in the Court of the Sub Judge Jammu, seeking execution of the decree which was confronted with the opposition on the ground of insufficiency of description of the property but in vain, consequently success of motion, begetting a direction favouring the decree holder, requiring the Police not to allow interference by the judgment debtor with the subject matter of the decree. Being aggrieved, the impugned order is challenged by the judgment debtor on the basis of limits imposed upon the power of the Executing Court by sub rule (1) rule 32 Order XXI of Civil Procedure Code, (CPC for short), besides, deficiency of description of the subject matter of the decree. The contention has raised a few questions which are summarized hereunder: (i) Whether Executing Court can take the aid from the pleadings and documents forming part of the suit and pleadings thereof to construe the decree; (ii) Whether the Executing Court can command the police to extend assistance to the decree holder in implementation of the decree.

(2.) TO persuade me to answer the question No. (i) above in the negative, the learned counsel vehemently contended that the executing Court could not have gone beyond the decree, meaning thereby that insufficiency of the description of the subject matter of the decree, would entail dismissal of the execution petition. If the argument is accepted it would unsettle the decree which has become final, forcing the decree holder to institute a fresh suit, causing loss and inconvenience to seekers of justice, something beyond imagination, in view of rule of conclusiveness of the judgment, to the effect that same cause cannot be permitted to be raised twice. Failure of a litigant because of omission to give the description, sufficient to identify the subject matter of the suit, is conceivable, for, it is obligatory upon the plaintiff to give the full description of the suit property in the plaint but refusal to execute the decree because of lack of sufficient description in the decree, represents a contention bereft of logic, devoid of force and not countenanced in law. I say so, because the decree holder has no role to play in drawing the decree and the power to draw the decree is exclusively within the domain of the Court. Thus insufficiency of the description will not stand in the way of the executing court and it will be within its powers to place reliance on the pleadings of the parties and the material available on the record relating to the suit, the decree stems from, to construe the decree in its right perspective and shall proceed to execute the decree unless set aside by the competent court of jurisdiction. Accordingly question No. 1 is answered in the affirmative. As a corollary the ground of challenge founded on the absence of detailed description in the decree fails. In taking this view I am fortified by judicial pronouncement handed down by the apex court in Bhavan Vajay v. Solanki Hunaji Khodaji Mansang (AIR 1972 SC 1371) and the relevant paragraph is extracted: "19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgment rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appear to have been unduly influenced by the words of the decree under execution. The appellate Court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and the appellate Court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them."

(3.) I would now like to advert to question No. (ii) spelt out hereinabove which is based on the contention advanced by learned counsel for the petitioner that a decree for injunction could be executed by the Executing Court by adherence to sub rule (1) of rule 32 Order XXI only and according to learned counsel it rules out assistance of the police. To ascertain the answer, it will be appropriate to extract rule 32 of Order XXI, in its entirety, as also a portion of section 51 of CPC hereunder: - "32. Decree for specific performance, restitution of conjugal rights, or for an injunction - - (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub -rule (1) or sub -rule (2) has remained in force for six months, if the judgment -debtor has not obeyed the decree and the decree -holder has applied to have the attached property sold, such property may be sold: and out of the proceeds the Court may award to the decree holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment -debtor on his application. (4) Where the judgment -debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree -holder or some other person appointed by the Court, at the cost of the judgment -debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree." "51. Powers of court to enforce execution. Subject to such condition and limitations as may be prescribed, the Court may, on the application of the decree -holder, order execution of the decree - - (a) by delivery of any property specifically decree; (b) by attachment and sale or by sale without attachment of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section); (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require."