On the basis of contents of compromise application, the decree having been passed, what is the remedy available for the Decree Holder whose suit has been decreed in terms of the compromise application. The answer is provided in Order 21 Rule 32(1) and (5) of the CPC. I do not see any substance in the arguments of the learned counsel for the Objector in this regard. If Decree Holder can maintain its application under Order 21 Rule 32 then there is no reason that why executing Court should not execute the decree. There is no dispute with the proposition of law as laid down in Sarup Singh's case (supra). However, the right of Decree Holder stems from the provisions given in sub-Rule(5) of Rule 32 of Order 21 of the Civil Procedure Code and Decree Holder has invoked the said right flowing from the statute. In para-2(e) of the compromise application, there is specific averment of Judgment/debtor-defendant that defendant agreed that decree for mandatory injunction be passed in favour of plaintiff against defendant for restoration of possession. The only remedy left to Decree Holder is to file execution and get the decree satisfied. Even otherwise, executing Court cannot go behind the decree. In this regard, I am in complete agreement with the view taken expressed in Addisons Paints and Chemicals Ltd. Vs. M/s Sant Ram Parma Nand & Others . The executing Court cannot go behind the decree and Section 47 of the Civil Procedure Code is no meant for the said purpose. Even documents filed by Objector do not relate to the title of Objector. Simply as husband of the Judgment Debtor he was residing in the said property, that will not create any independent right in favour of Objector.1
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Delhi High Court
Mohd. Naseem vs Chaman Ara Begum on 15 September, 1997
Equivalent citations: 1997 VIAD Delhi 256, 71 (1998) DLT 130
Vijender Jain, J.
(1) Bawa Shiv Charan Singh, learned counsel appearing for the Decree Holders, states that this application is not necessary and wishes to withdraw the same.
(2) Dismissed as withdrawn. Ex. 163/91 & EAs. 127-128/95 & 322/95
(3) This is an application (EA 127/1995) under Section 47 read with Section 151 of the Code of Civil Procedure (in short "CPC") by Mohd.Saddique, husband of the deceased Judgment Debtor. Mr. B.I. Singh, learned counsel appearing for the Objector-husband of the deceased Judgment Debtor, has contended that the decree was obtained by fraud and, therefore, the same cannot be executed and the decree be set aside. Another contention raised by Mr.B.I. Singh is that the suit, which was filed by the plaintiff/Decree Holder was for mandatory injunction and no order in the execution proceedings can be passed for delivery of possession. In support of his contention, he has cited a Full Bench decision of this Court reported in Sarup Singh Vs. Daryodhan Singh , in which it is held :-
"As observed by the High Court of Calcutta in Hem Chandra Naskar V. Narendra Nath Bose, Air 1934 Cal 402 and by the High Court of Allahabad in Nawab Singh v. Mithu Lal, Air 1935 All 430, a decree for mandatory injunction as well as for preventive injunction are to be executed in accordance with Rule 32 of Order Xxi of the Code. We are not impressed by the vehement submission of the counsel for the respondent that the decree which had been obtained by him in this case has become useless or inexecutable. In fact, where a party is content to seek a decree for injunction rather than for delivery of possession in a suit property (properly?) framed for the purpose he has to face its logical consequences and he can have the decree executed only in accordance with the provisions of law governing execution of decrees for injunction and he cannot employ the argument of frustration of his object existing behind his suit to obtain a relief from the Court which was not envisaged by the suit and not granted by the Court.
(4) It is not open to a party to claim the use of the machinery of the execution department of the Court to seek any further or other relief for fulfillment of his object which is not permitted by law. We, therefore, hold that a decree for injunction granted in this case is to be executed by the Court below in the manner provided by sub-rules (1) and (3) of Rule 32 of O.XXI of the Code and not by issue of a warrant for delivery of possession in accordance with Rule 35 and the impugned order of the execution Court below is without jurisdiction.
(5) Another argument raised by the learned counsel for the Objector is that as a matter of fact, there is no decree in existence and, therefore, if possession has to be taken by the Decree Holder then the proper remedy for him is to file a suit or possession. Yet another argument of the learned counsel for the Objector is that in the present case where the Decree Holder himself is also the L.R. of deceased Judgment Debtor, can be execute a decree against himself? Lastly Mr.B.I. Singh has contended that the Objector in his own independent right is in possession of the property in question and in support of his contentions has filed certain documents relating to purchase of some materials for construction and certain proceedings between the Decree Holder and the previous owner of the property in question.
(6) On the other hand, Bawa Shiv Charan Singh, learned counsel appearing for the Decree Holder, has contended that the executing Court has not to go behind the decree and no document pertaining to the title of Objector has been placed by the Objector on record. Learned counsel for the Decree Holder has further contended that he has filed execution application under the provisions of Order 2 Rule 32 of the CPC. Sub-rules (1) and (5) of Rule 32 of Order 21 are as under:- "Decree for specific performance for restitution of conjugal rights, or for an injunction. 32 (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. (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 require 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." Plain reading of Rules 32(1) and (5) of Order 21 harmoniously construes that the execution application filed by the Decree Holder is maintainable. He has further contended that even if the Decree Holder, as the brother of deceased Judgment Debtor, being one of the L.R., that will not affect the decree or the right accrued to him by virtue of the decree passed in his favour and could still maintain the execution application under the relevant provisions of the CPCode.
(7) I have given may careful consideration to the arguments advanced by the learned counsel for both the parties. No doubt, in view of the judgment delivered in Sarup Singh's case (supra), in which it was held that:-
"..........WHEREa party is content to seek a decree for injunction rather than for delivery of possession in a suit property (properly?) framed for the purpose, he has to face its logical consequences and he can have the decree executed only in accordance with the provisions of law governing execution of decrees for injunction and he cannot employ the argument of frustration of his object existing behind his suit to obtain a relief from the Court which was not envisaged by the suit and not granted by the Court."
(8) In the compromise application, on the basis of which the decree was passed, in para-2(B), it has been admitted by the defendant, Mst.Chaman Ara Begum, that she was inducted by the plaintiff as a licensee in the back portion of the property bearing No. B-473, New Friends Colony, New Delhi and the same stands revoked vide registered notice dated 13/16-2 1991, which was received by her on 17.1.1991. In para-2(E) of the said application, further averment was made that the defendant had no interest in the said property bearing No. B-473, New Friends Colony, New Delhi and the same is the absolute property of the plaintiff. It was also agreed by the defendant that the decree for mandatory injunction be passed in favour of the plaintiff against the defendant for restoration of possession of the back portion of the ground floor of property No. B-473, New Friends Colony, New Delhi.
(9) On the basis of contents of compromise application, the decree having been passed, what is the remedy available for the Decree Holder whose suit has been decreed in terms of the compromise application. The answer is provided in Order 21 Rule 32(1) and (5) of the CPC. I do not see any substance in the arguments of the learned counsel for the Objector in this regard. If Decree Holder can maintain its application under Order 21 Rule 32 then there is no reason that why executing Court should not execute the decree. There is no dispute with the proposition of law as laid down in Sarup Singh's case (supra). However, the right of Decree Holder stems from the provisions given in sub-Rule(5) of Rule 32 of Order 21 of the Civil Procedure Code and Decree Holder has invoked the said right flowing from the statute. In para-2(e) of the compromise application, there is specific averment of Judgment/debtor-defendant that defendant agreed that decree for mandatory injunction be passed in favour of plaintiff against defendant for restoration of possession. The only remedy left to Decree Holder is to file execution and get the decree satisfied. Even otherwise, executing Court cannot go behind the decree. In this regard, I am in complete agreement with the view taken expressed in Addisons Paints and Chemicals Ltd. Vs. M/s Sant Ram Parma Nand & Others . The executing Court cannot go behind the decree and Section 47 of the Civil Procedure Code is no meant for the said purpose. Even documents filed by Objector do not relate to the title of Objector. Simply as husband of the Judgment Debtor he was residing in the said property, that will not create any independent right in favour of Objector.
(10) For the reasons stated above. I dismiss the objections (EA Nos. 127-128/1992) filed by the Objector. Warrants of possession be issued against the Objector. Mr.B.I. Singh, learned counsel for the Objector, prays that he would like to file appeal against this order. Let warrants of possession be not issued for two weeks from today.
(11) Petition stands disposed of.
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