The Learned Counsel for the Petitioner herein has drawn my attention to Section 36 of the Civil Procedure Code. It is posited in Section 36 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 the Orders (including payment under an Order). Hence the finding of the Executing Court that the said Application Exhibit 21 was not tenable cannot be sustained in the light of the Section 36 of the CPC. However, even if the said Application for execution is tenable, considering the fact that the Petitioners have invoked Order 21 Rule 32 of the CPC, the Executing Court would have to adjudicate upon the said Application on the touchstone of the said provision as also sub Rule 5 of Rule 32 of the CPC. It is only after the Executing Court is satisfied that there is a willful default / disobedience of the said Order that the said provision under Order 21 Rule 32 could be invoked. In that view of the matter, the impugned Order is set aside and the matter is remanded back to the Executing Court for a de novo consideration of Exhibit 21 in the light of the observations made herein above. The contentions of the parties are explicitly kept open for being agitated before the Executing Court.
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4849 of 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Dina Dora Sukhia Vs Jimmy Dora Sukhia
CORAM : R.M.SAVANT, J.
ORAL JUDGMENT :
DATE : 7th DECEMBER, 2011
1. Rule. With the consent of the parties made returnable forthwith and heard.
2. The above Petition takes exception to the Order dated 21-4-2010 passed by the Learned Civil Judge, Senior Division, Pune, by which Order, the Learned Judge has rejected the Application Exhibit 21 in Special Darkhast No. 119 of 2006 filed by the Petitioner i.e. the original Defendant, for execution of the Order dated 4-10-2004 as not tenable.
3. It s not necessary to burden this Order with unnecessary facts. Suffice it to say that an Order came to be passed on 6-8-1999 in Special Civil Suit No. 430 of 1995, whereby the Plaintiff was restrained from entering into the porch or verandah in the residential house of the Defendant No. 1
4. It appears that against the said Order dated 6-8-1999, an Appeal from Order was filed being Appeal from Order No. 831 of 2009 which Appeal was admitted and ultimately came to be disposed of on 4-10-2004. In the said Appeal, a statement was made that the heirs of the Defendant No. 1 i.e. the Respondent Nos. 2 and 3 to the said Appeal would be made available the same facility in the matter of parking of vehicle as was made available to the Defendant No. 1. The said statement has been recorded in the said Order dated 4-10-2004. It is the case of the Petitioner herein that the Plaintiff has not abided by the said statement made by the Counsel as recorded in the order dated 4-10-2004. As the Respondent Nos. 2 and 3 have not been allowed to park their vehicles, the Respondent Nos. 2 and 3 therefore, applied for execution of the said Order dated 4-10-2004 and invoked Order 21 Rule 32 of the Civil Procedure Code, for committing the Plaintiff to Civil Prison. The said Application was numbered as Exhibit 21 which has been disposed of by the impugned order dated 21-4-2010. As indicated above, the said application Exhibit 21 has been rejected on the ground that it is not tenable as it is an Order passed and not a decree which is executable.
5. The Learned Counsel for the Petitioner herein has drawn my attention to Section 36 of the Civil Procedure Code. It is posited in Section 36 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 the Orders (including payment under an Order). Hence the finding of the Executing Court that the said Application Exhibit 21 was not tenable cannot be sustained in the light of the Section 36 of the CPC. However, even if the said Application for execution is tenable, considering the fact that the Petitioners have invoked Order 21 Rule 32 of the CPC, the Executing Court would have to adjudicate upon the said Application on the touchstone of the said provision as also sub Rule 5 of Rule 32 of the CPC. It is only after the Executing Court is satisfied that there is a willful default / disobedience of the said Order that the said provision under Order 21 Rule 32 could be invoked. In that view of the matter, the impugned Order is set aside and the matter is remanded back to the Executing Court for a de novo consideration of Exhibit 21 in the light of the observations made herein above. The contentions of the parties are explicitly kept open for being agitated before the Executing Court.
6. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs.
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