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PETITIONER: JAI DAYAL & ORS.

       Vs.

RESPONDENT: KRISHAN LAL GARG & ANR.

DATE OF JUDGMENT:       06/11/1996

BENCH: K.RAMASWAMY, G.B.PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                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

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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

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    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.