JUDGMENT V.M. Sahai and R.N. Misra, JJ.
1. The petitioner is aggrieved from her dispossession by respondent No. 4 from House No. C-39, Sector 15, N.O.I.D.A., Gautambudh Nagar and by way of this petition, she has sought relief in the nature of mandamus directing the respondent Nos. 1 to 3 to restore possession of her house by evicting respondent No. 4 and his musclemen. She has also sought relief for investigation of the case by police and submit charge-sheet in light of her application Annexure-8 to the writ petition.
2. We have heard Sri M. K. Gupta learned Counsel for the petitioner, Sri G. K. Singh, Sri L.M. Singh and learned standing counsel for the respondents.
3. It appears from the record that the petitioner is owner of disputed house. The respondent No. 4 wanted to interfere in her possession, therefore, she filed O. S. No. 842 of 1986 before Civil Judge, Ghaziabad which was decreed on 27.4.1991 and Civil Appeal No. 74 of 1991 preferred by respondent No. 4 against the judgment and decree of trial court dated 27.4.1991 was dismissed by 7th Addl. District Judge, Ghaziabad vide order dated 23.1.1992. The respondent No. 4 preferred Second Appeal No. 448 of 1991 before this Court, which too was dismissed on 18.2.2002. These judgments are Annexures-1, 2 and 3 to the writ petition. In para 7 of the writ petition, it has been alleged that respondent No. 4 did not prefer any S.L.P. before Hon'ble Supreme Court against the Judgment of High Court. When respondent No. 4 failed in his efforts to get property in question from civil side, he moved an application, under Section 156(3), Cr. P.C. before Chief Judicial Magistrate, Gautambudh Nagar, copy of which is Annexure-4. The case was registered by the police and the petitioner and her husband apprehending their arrest, moved the High Court under Section 482, Cr. P.C. When they were present In Allahabad in connection with their petition under Section 482, Cr. P.C, the respondent No. 4 forcibly occupied the house in question. The petitioner moved the police authorities but of no avail, hence she filed this writ petition.
4. The respondent No. 4 filed affidavit alongwith an application to recall the order dated 4.10.2002 and in that affidavit, he again challenged title of house in question. From the judgment Annexures-1 to 3, it is evident that title and possession of petitioner has been upheld by the trial court as well as first appellate court and High Court. There is nothing on record to show that the judgment of High Court was challenged by the respondent No. 4 before the Apex Court, as such, the decree passed by 4th Addl. Civil Judge (S.D.). Ghaziabad on 27.4.1991 in O. S. No. 842 of 1986 was final. The judgment of trial court shows that plaintiff had filed suit for permanent prohibitory injunction restraining respondent No. 4 from interfering with her title and possession over the house in question. The legal position is very clear. When decree of civil court has been passed and it has become final, same can be executed by the decree- -holder against the judgment-debtor. For this purpose, no fresh suit or writ petition need be filed. The relief sought in the instant writ petition for restoration of possession is not maintainable because the effective remedy to get decree of civil court complied with has been provided in C.P.C. Learned Counsel for the respondent No. 4 has cited Ghan Shyam Das Gupta and Anr. v. Anant Kumar Sinha and Ors. , in which the Apex Court has clearly opined that if the elaborate and exhaustive provision has been made in C.P.C. for execution of decree, the writ petition cannot be entertained. Similar view has been taken by the Apex Court in the case of Mohan Pandeu v. Usha Rani Rajgaria . In the said case, it has been observed that when there is a dispute between two private persons relating to immovable property and the eviction suit directly covering the property in dispute is pending in civil court, the writ petition for restraining the respondents from disturbing lawful possession of the petitioner alleging some complaints made by respondents and the action taken by police thereon, is not maintainable. Learned Counsel for the petitioner has cited following cases:
1. Mahish Goel v. Mohan Lal Mehra and Ors. 1995 (2) ARC 48.
2. Mohan Lal Mehra v. State of U.P. and Ors. 1995 (1) ARC 553.
3. Jai Prakash Vashisht v. Addl. District Magistrate (E), Meemt and Ors. 1995 (1) ARC 476 : 1995 (2) AWC 995.
We have gone through these judgments. The facts were different. In the said cases, prospective allottee had occupied building and there was no decree of civil court against them, therefore, Court interfered.
5. Learned Counsel for the petitioner has further cited case of Popcorn Entertainment and Anr. v. City Industrial Development Corporation and Anr. , in which the Apex Court interfered in the matter relating to contract. There was also no decree of civil court.
6. The facts of the present case before us are different. In this case, the petitioner filed suit against the respondent No. 4 for permanent prohibitory injunction. The title and possession of petitioner was upheld by the trial court as well as first and second appellate court. Since respondent No. 4 was party to that civil litigation, therefore, decree passed by civil court was binding upon him. It appears that respondent No. 4 has not obeyed decree rather disobeyed It and occupied the house of the petitioner for which he had been permanently restrained by the civil court, therefore, the petitioner has got effective remedy to approach the Court, which passed the decree, for execution under Order XXI, Rule 32, C.P.C. which runs as under:
Rule 32. Decree for specific performance for restitution of conjugal rights, or for an injunction.--(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 wilfully 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.
(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directions or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under Sub-rule (1) or Sub-rule (2) has remained in force for (six months) if the judgment debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold ; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(4) 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 attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(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 process aforesaid, direct that the act required 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.
(Explanation.-- For the removal of doubt, it is hereby declared that the expression" the act required to be done" covers prohibitory as well as mandatory injunctions).
Illustration A. a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B, A in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution proceedings.
7. Learned Counsel for the petitioner has argued that provisions of Order XXI, Rule 32, C.P.C. are applicable in the cases where decree for mandatory injunction has been passed, but this argument is not acceptable in view of Explanation added to said Rule by C.P.C. (Amendment) Act, 2002 (22/2002 w.e.f. 1.7.2002). Learned Counsel for the petitioner has further argued that under said provision, the possession cannot be restored but we are not going to accept this argument. Where a decree-holder has been dispossessed otherwise than in due course of law, he can get possession by filing an application, under Order XXI, Rule 32, C.P.C. In Smt. Kasturi Devi and Anr. v. Harbant Singh and Nanda v. Ram Dhan 2001 (1) PLR 23, it has been held that where judgment-debtor in violation of decree has entered into possession forcibly, civil court cannot sit idle as a mere spectator. It has every power to restore possession back to the decree-holder. The civil court can refer the matter to the police for implementation of decree. If any person has been prohibited by the civil court from doing a particular act, disobedience on his part is actionable under the said provision. The illustration added to the aforesaid provision has clarified the position. Now there is no doubt that the civil court has every power to put the decree-holder in possession of the property in question which was subject-matter of dispute between the parties and the judgment-debtor was restrained from interfering with the peaceful possession of the plaintiff. If the plaintiff is allowed to start fresh litigation in respect of same property, on each and every instance of its disobedience by the Judgment-debtor, there would be no end of litigation. Any proceeding taken by the police or criminal court at the instance of judgment-debtor has no effect on the decree passed by the civil court.
8. Thus, we are of the opinion that the High Court cannot interfere in the matter in dispute in this writ petition because effective remedy has been provided under Order XXI, Rule 32, C.P.C. for execution of decree for prohibitory injunction.
9. As regard the direction to the police authorities about registration of case and submitting charge-sheet on the application of petitioner is concerned, she has also got alternative remedy. If the police has not registered the case on her application against respondent No. 4, she can very well approach the Magistrate concerned under Section 156 (3), Cr. P.C. or file complaint against him and the Court will take appropriate action in accordance with law. In view of above, this writ petition is dismissed. No order is passed as to costs.