1988 PLP 151 (SCMR)

MUHAMMAD AKRAM, J.--On 11-11-1966 the Senior Civil Judge, Sheikhupura, passed a decree in favour of Muhammad Aslam Respondent herein alongwith his minor children against the petitioners herein for a declaration to the effect that they were the co-sharers co-owners to the extent of 36/64 shares in the suit land situated in village Sirranwali, Chak No. 123/R.B., Tehsil and District Sheikhupura. He also issued a permanent injunction against defendants-petitioners Nos. 1 and 2 restraining them from obtaining physical and actual possession of the land comprised in Killa Nos. 13, 14, 16 min, 17, 18, 24 and 25 of square No. 67 situated in the village and from preventing them from benefiting from the land in suit to the extent of their 35/64 shares. The Court further ordered that the sale made by defendants-petitioners 3 and 4 in favour of defendants-respondents 1 and 2 shall not be deemed to be sale of the killa numbers in suit and shall be taken to be sale to the extent of 54 kanals 9 marlas of the land jointly owned by the plaintiffs and defendants-respondents 3 to 5.

2. The trial Court decree was reversed on appeal by the Additional District Judge, Sheikhupura, but was restored by the High Court in second appeal on the 14th of October, 1969.

3. On the 1st of October, 1971, Muhammad Aslam, decree-holder moved a petition in the High Court complaining that the judgment debtors/petitioners had forcibly dispossessed him from the suit land and occupied the same despite the fact that a perpetual injunction restraining them from so doing had been granted by the trial Court on the 11th November, 1966 and upheld by the High Court in second appeal on the 14th of October, 1969. In that petition Mr. M.S. Baqar, Advocate, learned counsel for the judgment-debtors, undertook on behalf of his clients to restore the possession of the land in dispute after having harvested the standing crop after a period of two months. In view of this undertaking given by the counsel for the judgment-debtors, a learned Judge of the Lahore High Court at Lahore, passed the following order:-- "I do not propose to inflict any punishment upon the respondents for having committed contempt of Court. This case shall stand disposed of accordingly. The petitioners shall, however, be at liberty to have this application resurrected if, for any reason, whatsoever, the possession is not handed over to the petitioners by the respondents immediately on the expiry of two months from today." The petitioners, however, failed to abide by this undertaking and deliver possession of the land to the respondents. In these circumstances, Muhammad Aslam, respondent filed another application against the petitioners for contempt in the High Court. But on the 21st of January, 1976, the same learned Judge of the High Court in Chambers formed the opinion that it was not maintainable at the stage of the execution of the decree that had already been passed against the judgment-debtors. He observed that the Senior Civil Judge, Sheikhupura, as the Court of first instance, was competent to execute the decree and, therefore, remitted the petition to him for being treated as an execution application and for further proceeding in accordance with law.

4. In pursuance thereof on the 21st of March, 1976, the respondent filed an application against the petitioners herein under rule 32 of Order XXI read with section 47 of the Code of Civil Procedure in the Court of the Senior Civil Judge, Sheikhupura. The petitioners judgment-debtors filed their objections against the application and, inter alia, alleged that Muhammad Aslam respondent having already sold away his remaining share comprised in the joint Khata had no locus standi to file the execution application. Moreover, it was barred by limitation having been made more than six years after the passing of the decree and the decree for declaration was not executable and the order for the prohibitory injunction could not be enforced against them under Order 21 rule 32(5) of the Code. Even otherwise Muhammad Aslam, respondent, one of the decree-holders, was not competent to execute the decree. His remedy, if at all, lay in applying for the partition of the land comprised in the joint khata. But on the 23rd of December, 1976, the objections behalf of the judgment-debtors were repelled by the Senior Civil Judge, Sheikhupura. The order was affirmed on appeal of the petitioners dismissed by the Additional District Judge, Sheikhupura, on the 6th of April, 1977. Their revision against the order was likewise dismissed in limine by a learned Judge of the Lahore High Court at Lahore on the 18th of April, 1977.

5. In these circumstances the petitioners have filed the above petition for special leave to appeal from the impugned order dated 18th of April, 1977 passed by the High Court.

6. There is little doubt that the decree passed in favour of the decree-holder against the judgment-debtors was for a declaration as well as permanent injunction restraining them from interfering with the actual and physical possession of the Kills numbers mentioned above. Even on the 17th of March 1972, the learned counsel for the judgment-debtors unequivocally gave an undertaking to restore the possession of the land to the decree-holder within two months. There is hardly any force in the contention that the decree was purely declaratory and as such was not executable at all.

7. Before us the learned counsel also contended that in this case, for the alleged breach of the prohibitory order under clause (5) of rule 32 of Order 21 of the Code of Civil Procedure, the respondent/decree-holder was not entitled to any specific relief. In support of this contention he relied on the pronouncement in Burhanuddin Ahmed and others v. Veda Brata Shakaraborti and others P L D 1954 Dacca

651. But it does not necessarily mean that thereby the petitioners were liable to escape the penalties and consequences of the breach of the decree for injunction as laid down in clauses (1), (2) and (3) of rule 32 of Order 21 of the Code. In this connection reference may be made to the pronouncement in Angad and others v. Madhe Ram and others A I R 1938 All. 416 and Hem Chandra Naskar and another v. Narendry Nath Bose and others A I R 1934 Cal. 462, while Order 21, rule 32, clauses (1), (2) and (3) apply to both classes of injunctions and enable the decree-holder to put the judgment-debtor's into civil prison and to attach the judgment-debtor property and by these means to compel him to obey the decree, clause (5) has no application to the case of a simple prohibitory injunction.

8. The learned counsel next submitted before us that at any rate the application made by the respondent in the trial Court for execution of the decree was barred by time. In this connection by virtue of the Law Reforms Ordinance, XII of 1972, section 48 of the Code of Civil Procedure was amended so that under the amended provisions no order for execution of a decree could be made upon fresh application presented after six years from the date of the decree sought to be executed. But this section in terms is not applicable to a decree granting an injunction. By virtue of the amendment introduced under the Law Reforms Ordinance, 1972 Article 182 of the Limitation Act was also omitted and thereby the recourse can be had to residuary Article 181 of the Limitation Act. In the instant case some of the decree-holders are minors and if at all section 7 of the Limitation Act could be invoked for any extension in the period of limitation for the execution of the decree. Moreover, on the 17th of March, 1972, learned counsel for the petitioners in his statement made in Court undertook to deliver the possession of the land to the respondent within two months. It was on this statement that no action for contempt of the Court was taken on the application made by the respondent. These considerations were not fully examined by the two Courts. The question about the period of limitation for the execution of the decree required further examination. We, therefore, grant leave to appeal to the petitioners. Security Rs.1,

000. Further proceedings in the executing Court are stayed pending the disposal of the appeal. M.I./M-228/S Leave granted.