1980 PLP 962 (CLC)

4. The learned counsel for the petitioners has argued that the finding of the learned District Judge on issue No. 2 cannot be legally sustained as the petitioners had not voluntarily delivered the possession, therefore, the proceedings under Order XXI, rule 32 of the Civil Procedure, Code had been rightly initiated by the learned trial Court and the property of the respondents attached.

5. The learned counsel for the respondents has, on the other hand, contended that since the petitioners had acknowledged that the possession had been delivered in the appeal filed by the respondents, therefore, it can be safely concluded that they had delivered the possession voluntarily. Had this not been the case they would not have pursued their appeal which had been filed against the order of refusal to eject the petitioners. It is further argued that even otherwise the provisions of Order XXI, rule 32 of the Civil Procedure Code were not applicable, as according to the showing of the petitioners themselves the decree passed in their favour had already been violated.

6. As regards the first contention I agree with the findings of the learned District Judge that in view of the statement of the learned counsel for the petitioners the appeal filed against the order of refusal of ejectment the petitioners had conceded that they had delivered the possession and that the appeal had become infructuous. In these circumstances they could not turn round and so particularly after the dismissal of the appeal that they had been physically dispossessed. However, the question whether after the decree had been disobeyed the provisions of Order XXI, rule 32 of the Civil Procedure Code would be attracted may be attended to. Only sub-clauses (1) and (5) would require interpretation in the present case, therefore, are reproduced below :-- (1) Where the party against whom a decree for the specific performance of a contract, or for restitution o: conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully 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. (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 practic able 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."

7. The learned counsel for the respondents has relied on Burhanuddin Ahmad and others v. Veda Brata Chpkraborti and others (P L D 1964 Dacca 661) in support of contention. In this case it was held that where a prohibitory injunction order is violated the decree is not executable and the execution case is not maintainable for any of the remedies under rule 32, Order XXI, of the Civil Procedure Code. As per the facts of that case a suit for declaration and perpetual injunction was decreed and the defendant No. 1 in that case was permanently restrained from interfering with the possession of the plaintiff in the land given in the schedule of the plaint. Some of the properties having been transferred and the injunction disobeyed an applica tion under Order XXI, rule 32, C. P. C. was filed against the transferees. It was claimed by the transferees that the doctrine of lis pendis was not applicable because they had not disobeyed injunction, and therefore, the execution application was not maintainable. The trial Court had come to the conclusion that the injunction order being only prohibitory, therefore, rule 32(5) of the said Order was not available. This finding was set aside on appeal and a second appeal preferred in the High Court. In connection with the clause (1) of Order XXXII, rule 21, C. P. C. it was observed as follows:- "From the aforesaid provision of clause (1) remedy for enforcing the decree has been provided in case of wilful failure to carry out the injunction by the judgment-debtor though he had an opportunity for obeying the decree. In such a case the decree may be enforced by the procedure laid down therein. Then again the words are `wilfully failed' but not `wilfully dis obeyed' or violated the injunction order. It appears that when there is a wilful failure the decree may be enforced. Now can it be said that when there is a violation of the injunc tion order, the decree may be enforced as against the judgment-debtor ? In my opinion when there is violation there remains no decree to be enforced."

8. It was further observed that when there has been a violation of the injunction order there is no provision for evicting the persons who violated the injunction order but only for enforcing a decree which can be enforced. Furthermore, such a decree for prohibitory injunction does not provide for how the judgment-debtor who has violated the injunction order can be thrown out of the land. Clause (5) of rule 32 of Order XXI makes the specific provision when by the Court it is requir ed that an act is to be done and in case of failure of performing the act required to be done by the judgment-debtor that the same may be done so far as practicable by the decree-holder or some other persons appointed by the Court. It was further concluded that clause (5) had also no bearing or connection with the case of a prohibitory injunction order. It was further observed that at some stage Calcutta High Court had followed a contrary view but the same was not adhered to by the same High Court.

9. The Allahabad High Court view is expressed by a judgment reported as Angad and others v. Madhoo Ram and others (A I R 1938 All. 416) and has been approved by the aforesaid judgment which is quoted below :- As soon as an act which is restrained from being done under a prohibitory injunction is done, it passes the stage of restraint or prevention. The undoing of the act that has already been done is not the same thing as restraining the act from being done. If clause (5), rule 32 was made applicable to prohibitory injunctions, the relief that a decree-holder ought to seek from the Court under it would be its assistance to provide measures necessary for the prevention of the doing of an act." The conclusion arrived at in the above judgment is cited below "Having considered all the aspects, I am of the opinion that when a prohibitory injunction is violated, the remedy is not by putting the decree into execution but by adopting other measures as provided by the law, As in the present case, the prohibitory injunction has been violated, the decree is not executable and the execution case is not maintainable for any of the remedies under rule 32 of Order XXI of the Code of Civil Procedure."

10. The learned counsel for the petitioners, on the contrary, has relied on all the authorities which the learned counsel for the respondents has relied in the judgment reported as Burhanuddin Ahmad and others v. Veda Brata Chakraborti and others (P L D 1964 Dacca 661). The authorities so relied may be examined. The case reported as Saleh Ahmad Chowdhury and others v. Kabir Ahmad (P L D 1963 Dacca 1022) does not support the contention of the petitioners. It was observed in this case as follows ;. "I have myself no doubt that sub-rule (5) of rule 32 of Order XXI of the Code of Civil Procedure by its wordings clearly excludes the possibility of its being applied to a prohibitory injunction. I agree with the decisions of the Calcutta, Allahabad, Patna and Madras High Courts referred to above and hold that sub rule (5) of rule 32 of Order XXI of the Code of Civil Procedure will not apply to the case under consideration which is a case of prohibitory injunction." The decision of the case Angad and others v. Madhoo Ram and others (A I R 1938 All. 416) in this case was also approved.

11. The learned counsel for the petitioners has relied on Toon Lai and others v. Sonoo Lai and others (A I R 1938 Pat. 522), but on a careful study on this judgment this does not also help the petitioners. The facts of the case were that the plaintiff succeeded in a suit in which he claimed an injunc tion to restrain the defendant against erecting building in such a way as to obstruct the plaintiff's light and air. The defendant went in appeal where there was a compromise between the parties. Subsequently the appellant made an application which he described as an application for execution and the case of the appellant was that the spirit of temporary injunction has been disobeyed. It was in this connection that the follow ing observation was made "It is quite unnecessary to deal with that point elaborately, because the Code speaks for itself and the relief to which the party is entitled under clause (5) is a relief to which he will be entitled only in the case of a mandatory injunction which this was not. It was an injunction prohibiting the defendant from erecting walls as to obstruct the light and air of the plaintiff. There could be no doubt about that matter and therefore, so far as the appeal relates to that question, all that need be said is that the learned District Judge was obviously correct in the conclu sion at which he arrived."

12. Nari Chinnabba Cherly v. E. 'Chengalroya Chetty arid others (A I R 1950 Mad. 237) relied upon by the learned counsel for the petitioners also goes against the petitioners. It was held that clause (5)of rule 32.of Order XXI of the Civil Procedure Code has no application to the case of prohibitory injunction but applies only to the case of mandatory injunction.

13. In view of the above discussion, it is therefore, concluded that in cases of prohibitory injunction, in case it is violated the provision of sub-clause (1) of rule 32 would not be applicable as the decree had already been disobeyed. Sub-clause (5) would only apply to mandatory decrees and not to one relating to the prohibitory injunction, This revision has no force on merits as well on the basis of the legal proposi tion raised by the petitioners and is hereby dismissed. In the circumstances. of the case there will be no order as to costs. K. M. A. Revision dismissed.