The 6th Day of November, 1996.
Present :
Hon'ble Mr. Justice K. Ramaswamy Hon'ble Mr. Justice G.B. Pattanaik Mr. Rani Chhabra, Advocate (N.P) for the Appellant No. 2-5. Mr. D. Goburdhan, Advocate for the Appellent No. 1. Mr. R.K. Maheshwari, Advocate for the Respondent.
O R D E R The following Order of the Court was delivered : O R D E R This appeal by special leave arises from the judgment of the learned single Judge of the Allahabad High Court, made on 9.4.1980 in Execution Second Appeal No.789 of 1969.
The admitted facts are that the appellant had filed Suit No. 1023/61 against the respondent for perperual injunction and also for mandatory injunction restraining him from blocking passage of 5 ft. between the house of the house of the appellant and that of respondents and for removal of the obstruction. It was decreed by the trial Court on March 30, 1964 which was confirmed by the appellate Court on December 10, 1964. Thus, the decree of mandatory injunction to remove the obstruction and perpetual injunction restraining the respondent from blocking the paeeage of the appellants through the "QOADEMLP area" of the land shown in the decree of the trial Court. When the appellants had filed an applecation for execution under Order 21, Rule 32, CPCin Execution Case No. 2903/65, the respondent had removed the obstruction and consequently, the execution case was struck out on February 25, 1966 on the finding that the passage had been cleared and obstruction was removed. That was also upheld by the appellate Court by dismissing CA No.65/66 on March 6, 1967.
It is now an admitted position that subsequently a shop was constructed which is an obstruction to the passage in question and it had completely blocked the passage. The appellant, therefore, filed again an execution application under Order XXI, Rule 32 in E.C.No.42/1967. The exwcuting Court had directed, over-ruling the oblections of the respondents, to remove the obstruction completely and issued injunction not to disobey the mandatory injunction. It was issued by way of attachment of the property and detention of the respondents in cinil prison if only the obstruction is not removed. On appeal, the Additional District Judge by his judgment dated March 10, 1969 confirmed the same. In the execution second appeal, the learned Single Judge reversed the decree and remitted the matter on the finging that under Section 22 of the Easements Act, it is required to be seen whether the obstruction has caused enjoyment of easementary right. Since that was not done, the courts below have committed error of law in directing removal of the obstruction and also the attachment of the properties and direcion to keep the respondents in civil prison.
The question is: whether the view taken by the High Court is correct in law? One of the defences taken by the respondent was that he had sold the property to third parties who had constructed the shop and thus it is not he who caused obstruction. That evidence was not accepted and it was found that the respondent had constructed the shop in the disputed area. Thereafter, it is recorded as a fact as under:
"The next question for decision in this appeal is whether the disputed construction has blocked the passage. In support of his contention on this point the decree holder has examinde himself and has stated on oath thaaat by disputed construction the passage at QOADEMLP shown in the decree has been compsetely blocked. The statement of the decree holder is corroborated by the report of the commission dated 13.5.1937. The report and map of the commission filed in the execution case show that the said passage has been completely blocked by the disputed construction and the place of dirty water of plaintiff's house has been stopped. The judgment debtors Babu examination that by the disputed completely blocked."
The appellate Court, thereafter, found that though the decree on the earlier occasion was stisfied, since by his conduct he had constructed shop obstructing the free flow of passagem an application for exection under Order XXI, Rule 32, CPC could be laid to enforce th injunction granted in the suit in respect of the aforesaid area.
It is contended that the High Court has proceeded on the primise that the rights of parties ore required to be adjudicated under Section 22 of the Easements Act. the view of the High Court is clearly in error. It seen that once the decree of perperual injunction and mandatory injunctiion has becom final, the judgment-debtor is required to obey the decree. In whatever form he obstructs, it is liable to removal for violation and the natural consequence is the execution proceedings under Oreder XXI, Rule 32, CPC which reads as under;
"(3) Where any attachment under sub-rule (1) or sub-rule (2)has remained in force foe sis moints if the judgment-holder has applied to have the attached property sold, such properyt msy be sold; out of the proceeds the Court may award to th edecree-holedr such compensation as it thinks fit, and shall pay the balance, if any, to the judgment- debtor on his application. Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the prpoperty sold has been made, or if made has been refused, the sttachment shall cease."
In this case, since the attachment was made for enforcement of the perpetual injunction and mandatory injunction, the decree is required to be complied with. In case he did not obey the injunction under Clause (1) of Order 32, the judgment-debtor is liable to detention in the civil prison and alwo to proceed against the property under attachment.
The question of Section 22 of Easement Act would arise only if the question arises for the first time. However having allowed the perpetual injunction and mandatory injunction granted by the trial Court to become final, it would be no defence for the respondentto plead that he has not obstructed the passagd etc. or that, as found by the High Court, a part of the property in which the present shop was constructed was not part of the property in the otiginal suit. In other words, if a judgment-debtor has suffered the decree, no attempt to circumvent the perperual injunction and mandatoty injunction, can be permitted. If the decree- holder makes any consturction clubbing the other adjacent property, property which is part of the subject matter in theearlier suit, a party cannot and should not, by his action, be permitted to drive the decree for another round of adjudication of the rights in second suit to be settle afresh. In other words, giving such a liberty will amount own hands and drive the decree-holder to another suit. It can never be facilitated to circemvent the law and relegate the party for tardy process of the civil action. What is needed is an opportunity to obey the injunction. Non complianc is a continuing disobedience entailing penal consequences. A separate fresh suit is barred under Section 49 of the CPC. Under these circumstances, the view of the High Court is clearly in error and appeal is accordingly allowed. The judgment and order of the High Court stand set aside and that of the trial Court and the appellate Court stand restored. No costs.