In substance, an order under Order
39 Rule 1 and 2 and Order 39 Rule 2A operates
in two different eventualities. Only because
such litigant has filed an application under
Order 39 Rule 2A for alleged breach of
injunction, his prayer for execution of the
temporary injunction order within the
parameters of section 36 read with Order 21 of
the Code, can not be refused.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD.
APPELLATE SIDE, CIVIL JURISDICTION
WRIT PETITION NO.: 735 OF 2010
Satyapal S/o Vaidyaram Katariya,
VERSUS
Sanjay S/o Jagannath Kanjune,
Citation;2010 AIR BOMBAY R (supp)280
CORAM: S. B. DESHMUKH J.
DATED: 8th FEBRUARY, 2010.
1.
A short, but interest question, whether
execution of any order passed by the Civil
Court is permissible under Order 21 of the
Code of Civil Procedure? [the Code, for
short], arises in this petition.
5.
To decide this question, raised in this
writ petition, I am listing down facts which
are not disputed by the parties.
(a)
The petitioner is the original plaintiff
(b)
Suit filed by the Petitioner has been
followed by an application seeking temporary
injunction under Order 39 Rule 1 and 2 of the
(c)
Code against the defendants.
The learned 15th Joint Civil Judge,
Junior Division, Aurangabad passed an order on
9th September, 2008 allowing the application
for temporary injunction restraining the
defendants, their relatives, servants or any
person on their behalf from making obstruction
in the suit land, from digging pits, removing
soil from the suit property etc. till the
disposal of the suit.
(d)
Order passed below Exhibit5 in Regular
Civil Suit dated 9th September, 2008, by the
learned 15th Joint Civil Judge, Junior
Division, Aurangabad, was subjected to Misc.
Civil Appeal No.105 of 2008 before the learned
District Judge1, Aurangabad by the
defendants.
Misc. Civil Appeal No.165 of 2008 filed
by the nine defendants, was heard and finally
dismissed by judgment and order dated 7th
November, 2008. This order is passed by the
learned District Judge1, Aurangabad.
Order passed by the learned District
Judge1, Aurangabad in Misc. Civil Appeal NO.
165 of 2008 was further challenged by filing
Writ Petition NO.1171 of 2009 in this High
Court. This writ petition was filed by nine
defendants in the suit and indisputably has
been withdrawn.
(g)
It is made clear that order of temporary
injunction passed by the trial Court under
Order 39 Rule 1 and 2 of the Code has
attributed finality.
(h)
The successful litigant/ plaintiff
unfortunately was not able to enjoy the fruits
of temporary injunction granted by the
competent civil Court and had attributed
finality up till High Court. The original
plaintiff was therefore required to file
execution petition, seeking execution of the
order of temporary injunction granted by the
This execution
competent Civil Court.
petition was presented to the office of
learned Civil Judge, Senior Division at
Aurangabad. This execution petition was
registered as R.D. No.102 of 2007 by the
learned Civil Judge, Senior Division,
Aurangabad.
(i)
In R.D. No.102 of 2009, original
defendants filed application Exhibit16 on
28th July, 2009 praying for dismissal of R.D.
No.102 of 2009.
(j)
The original defendant also filed
application Exhibit17 on the same day i.e.
28th July, 2009 praying for dismissal of the
R.D. NO.102 of 2009.
(k)
It is admitted by the parties that
application under Order 39 Rule 2A of the Code
was filed by the plaintiff. Copy is on record
Annexure RA (Page 47). In this application,
filed by the plaintiff, prayer is made that
contempt proceedings may be initiated against
the defendants and they may be punished
according to law. This application was filed
by plaintiff on 16th February, 2009.
The original plaintiff has also filed
(l)
summary criminal case No.6925 of 2008 in the
court of learned Judicial Magistrate, First
Class, Aurangabad for the alleged offences
under section 504, 506, 441, 447 of I.P.C.
against around 12 persons. Out of these 12
persons, 10 persons are defendants in the
suit. In this complaint, alleged offence is
dated 22nd September, 2008.
6.
Learned counsel for the plaintiff points
out the nature of the suit, the facts and
proceedings noticed herein above. They have
not been disputed by the counsel appearing for
the defendants. Learned counsel for the
petitioner submits that Regular Darkhast filed
by the petitioner is maintainable and order
impugned in this writ petition is perse
illegal. Per contra, learned counsel for the
Respondents vehemently urged that plaintiff
has filed an application under Order4 39 Rule
2A of the Code, which is pending. Execution
petition is not maintainable. He submits
that the two proceedings for the same purpose
i.e. Regular Darkhast No.102 of 2009 and
application under Order 39 Rule 2A of the Code
are not maintainable. Grievance raised, is
within the parameters of section 10 of the
Code.
7.
The suit filed by the petitioner is
pending before the civil Court, copy is not on
record. Counsel for the petitioner submits
that suit is for perpetual injunction. This
is not disputed by the Respondents. From the
facts, it is manifest that despite the grant
of temporary injunction by the competent civil
Court, the petitioner, who possess the order
of temporary injunction, is unable to
cultivate the land/ enjoy the suit property
and, therefore, has moved Regular Darkhast No.
102 of 2009. Expression "decree" is defined
under section 2 (2) of the Code of Civil
Procedure, 1908 (the Code, for short), which
reads as follows:
"Decree means the formal expression
of an adjudication which, so far as
regards the Court expressing it,
conclusively determines the rights of the
parties with regard to all or any of the
matters in controversy in the suit and may
be either preliminary or final. It shall
be deemed to include the rejection of a
plaint and the determination of any
question within section 144, but shall not
include
(a)
any adjudication from which an appeal
lies as an appeal from an order, or
(b)
any order of dismissal for default.
Explanation. A decree is
preliminary when further proceedings have
to be taken before the suit can be
completely disposed of. It is final when
such adjudication completely disposes of
the suit. It may be partly preliminary
and partly final;
Thus, decree is the formal expression of
an adjudication which so far as regards the
Court expressing it, conclusively determines
ig
the rights of the parties with regard to all
or any of the matters in controversy in the
suit and may be either preliminary or final.
In the case on hand, there is no decree passed
in favour of either of the parties, is an
admitted position. We are concerned with one
more definition i.e. "decree holder". Section
2 (3) provides that "decreeholder" means any
person in whose favour a decree has been
passed or an order capable of execution has
been made.
8.
Facts which have been noticed herein
above, do show that the petitioner is a decree
holder. To become a decree holder, does not
necessarily mean that person must hold a
decree passed by the competent civil Court.
Definition of "decree holder" takes in its
sweep any person in whose favour an order,
capable of execution, has been made.
9.
Expression "order" is defined under
section 2 (14) of the Code meaning thereby the
ig
formal expression of any decision of a Civil
Court which is not a decree. In the case on
hand, in my view, order passed by the
competent Civil Court under Order 39 Rule 1
and 2 of the Code, restraining the defendant,
from interfering possession of the plaintiff
over the suit property is an order under
section 2 (14) of the Code.
10.
Having held that the order of temporary
injunction is an order within the parameters
of section 2 (14) of the Code, now it would be
essential to consider, as to whether the order
of temporary injunction, passed by the
competent Civil Court can be sought to be
executed with the mechanism provided under
Order 21 of the Code. At this juncture, it
would be beneficial to refer to section 36 of
"36. Application to orders. The
provisions of this Code relating to the
execution of decrees (including provisions
relating to payment under a decree) shall,
ig
so far as they are applicable, be deemed
to apply to the execution of orders
(including payment under an order).
Part II of the Code is titled as
11.
"Execution", Subtitle is General. Section 36
lays down that the provisions of this Code
relating to the execution of decrees
(including provisions relating to payment
under a decree) shall, so far as they are
applicable, be deemed to apply to the
execution of orders (including payment under
an order). The Code of Civil Procedure, 1908
is a procedural code for conduct of civil
cases. Ordinarily, there are two branches of
law; civil laws and penal laws. Procedure to
be followed in relation to conduct of civil
cases, is provided under the Code of Civil
Procedure. So far as penal laws are
concerned, procedure therefore is
made
available under the Code of Criminal
Procedure, 1898. The procedural laws under
the Code of Civil Procedure and the Criminal
Procedure Code have undergone amendments from
the competent Legislature from time to time.
The Higher Courts in the country and
Legislature are worried and concerned about
pendency of cases in various Courts and at
all levels. To curtail life span of civil
cases, the Legislature, in its wisdom, has
recently introduced and implemented some
amendments. In substance, time span of civil
cases in various Courts is being tried to be
curtailed down by the Legislature and the
Honourable Supreme Court is also of the same
view. Every endeavor is being suggested and
tried to be implemented.
The Civil Procedure Code primarily
consists of two parts. The first part
comprises of various sections right from
sections 2 to section 158. The first part
i.e. section 2 to 158 can be said to be a
substantive part of the Code of Civil
Procedure. The procedure for carrying out the
objects of section 2 to 158, is laid down in
the schedule, which is titled as the First
schedule. Order 1 makes reference to parties
to suits. Last is the Order 52 in the first
Schedule of the Civil Procedure Code. When it
comes to interpretation of the provisions of
the Civil Procedure Code, ordinarily, sections
in the first part of the Code and the orders
which are made available in the first schedule
are considered conjointly. Primacy however is
to be given to the substantive part of
sections in the Code.
12.
In the case on hand, section 36 is the
provision, which I have referred here in
above. In my view, it is substantive
provision which has made applicable procedure
for seeking implementation of the order, with
the aid of Order 21 of the Code. In this view
of the matter, any order passed under the
provisions of the Code after hearing the
parties and not altered by superior Court, in
ig
my view, is implementable with the assistance
of Order 21 of the Code. Grant of temporary
injunction which has been uphold up to the
High Court is an important and significant
facet of order passed by the competent civil
Court, in the case on hand. Such order is
required to be honoured, obeyed and
implemented. Orders passed by the Civil Court
are not for decorating the dwelling of the
decree holder. Order passed in accordance
with the provisions of law are required to
executed and holder thereof is entitled to
fruits of the order in accordance with the
provisions of law.
13.
The Legislature, however, in its wisdom,
has made available the mechanism for execution
of decree for perpetual injunction, Order 21
Rule 32 and also Order of temporary injunction
with the assistance of section 36 and Order 21
of the Code.
Many a times, winner litigant, so far
14.
temporary injunction is concerned, are/ is
anxious to seek implementation of the
temporary injunction. It would be unjust to
say to such litigant to wait till passing of
the decree by the civil Court i.e. perpetual
injunction. It is more unjustifiable in this
era of internet. It is for this reason, in
my view, section 36 will have to be read with
order 21 of the Code.
15.
The submission of learned counsel for the
Respondent cannot be countenanced for more
than one reasons. Order 39 Rule 2A of the
Code has been brought on statute entirely for
different purpose. There, in that case, if
case is established within the parameters of
Order 39 Rule 2A of the Code, consequences
would follow. There, the prime importance is
given to disobedience or breach of injunction.
Consequences are made available under Order 39
Rule 2A (2) of the Code. Many times,
litigant holding the order of temporary
ig
injunction may be interested only in enjoying
his own property by restraining the
defendants. He/she may not be interested to
seek attachment of the property of the
defendant and/ or see the defendant in civil
prison as provided under Order 39 Rule 2A of
the Code. In substance, an order under Order
39 Rule 1 and 2 and Order 39 Rule 2A operates
in two different eventualities. Only because
such litigant has filed an application under
Order 39 Rule 2A for alleged breach of
injunction, his prayer for execution of the
temporary injunction order within the
parameters of section 36 read with Order 21 of
the Code, can not be refused. The order
impugned, in this writ petition, in my view,
is perverse, relegating the winner litigant/
petitioner to the date of filing of the suit
that too without remedy despite the fact that
petitioner is holding lawful order passed by
the competent Civil Court which is final. The
ig
trial Court failed to consider all these
aspects of the matter.
The second submission of the learned
16.
counsel for the Respondents, that such an
exercise is hit by section 10 of C.P.Code,
cannot be accepted also for more than one
reasons. Section 10 speaks about suit.
Expression "suit" is not defined under the
Code. Expression "suit" means any proceeding
by a party or parties against another in a
court of law. [Black's law dictionary].
Expression "suit" is employed twice in section
10. At the out set, it has been provided that
no Court shall proceed with the trial of any
suit in which the matter in issue is also
directly and substantially in issue in a
previously instituted suit between the same
parties. ... ... What is contemplated under
section 10, in fact, is pendency of two suits.
If section 10 in its entirety is considered,
it is difficult to accede to the arguments of
learned counsel for the Respondent. It is
the lame attempt on the part of the
Respondents to multiply the harassment which
is being already suffered by the petitioner/
plaintiff. This argument, therefore, I am
rejecting.
17.
I am of the considered view that the
order impugned is perse illegal, requires to
be quashed and set aside. Regular Darkhast
filed by the petitioner needs to be restored
on the file of the learned Civil Court which
shall hear the parties and pass appropriate
orders in accordance with the provisions of
law.
18.
Writ petition is allowed. Order passed
below Exhibits 16 and 17, impugned in this
Writ Petition is quashed and set aside.
Regular Darkhast No.102 of 2009 stands
restored on the file of learned executing
Court which shall hear the parties and proceed
with the said execution in accordance with the
19.
provisions of law.
Rule is made absolute, in above terms,
20.
with no orders as to costs.
Both the learned counsel have pointed out
that writ petition No.2966 of 1994 in between
the present petitioner and State of
Maharasthra is pending in this High Court. I
am clarifying that I have not heard either the
State or the Petitioner in relation to the
subject matter of Writ Petition No.2966 of
1994. This order shall be construed only
among the plaintiff and defendants in Regular
Civil Suit no.303 of 2008 and Reguar Darkhast
No. 102 of 2009.
Dated:08/02/2010.
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