Decree Confirming Possession Can Be Enforced By Evicting Judgment Debtor Who Forcibly Re-Enters: Orissa High Court

The Orissa High Court has held that an executing Court can order eviction of judgment-debtor from illegally occupying the suit-land even while executing a decree of permanent injunction against him, confirming the possession in favour of the decree-holder, under Order XXI Rule 32 of the Code of Civil Procedure (CPC).Clarifying the procedure governing the field, the Bench of Justice Sashikanta Mishra held –“…this Court finds that the Executing Court took note of the objections raised and rightly held that the decree of confirmation of possession can only be satisfied by evicting the judgment debtor from the suit land. It is a case of removing the obstruction caused by the judgment debtor to enforce the decree of confirmation of possession.”The case had a chequered history replete with multiple avoidable litigations. Succinctly put, one Krushna Swain, father of the opposite parties (decree-holders) had filed a suit against the father of the petitioners (judgment-debtors) in 1981 for declaration of right, title, interest, confirmation of possession and permanent injunction over the suit property. The suit was decreed by declaring title in his favour, confirming his possession and by permanently restraining the petitioners from interfering with his possession by a judgment dated 09.11.1983 and decree dated 24.11.1983. The petitioners impugned the same in appeal which was dismissed in 1987 by the first appellate Court, confirming the judgment and decree of the trial Court. The petitioners carried further appeal to the High Court which also got dismissed in 2008. Thus, the order of the trial court attained finality. Thereafter, the opposite parties/decree-holders filed an execution case. However, the petitioners/judgment-debtors filed objections under Section 47 of the CPC against such execution for three times on some or other technical grounds. Though the first and second of such objections were dismissed, being undeterred the petitioners again filed another objection. It was again binned by the executing Court as well as the revisional Court, challenging which they came before the High Court.Before the High Court, the petitioners raised another technical ground against execution of the decree. They highlighted that though a decree for permanent injunction confirming the possession of the opposite parties was passed by the trial Court, the executing Court erroneously mentioned it as a decree for recovery of possession. They contended that the Courts below have failed to answer whether in the absence of the decree for delivery of possession, issuing a writ for the same is maintainable. It was their further contention that the decree being for permanent injunction, it can only be executed under Order XXI Rule 32 read with Section 51 of CPC, whereas execution of decree for delivery of possession is governed by Order XXI Rule 35 CPC. Therefore, both the provisions cannot be clubbed together to grant the relief claimed by the decree-holders.The Court noted that even though the judgment-debtors did not contend that they have not entered into possession of the suit-land, yet they raised objections on technical grounds like absence of decree of recovery of possession, limitation etc. In such factual scenario, the Court held, relegating the decree-holders to file a fresh suit for recovery of possession would tantamount to nullifying the decrees passed in their favour by all the three Courts.“The judgment debtor cannot obviously be allowed to frustrate the decree against him simply by stepping on to the suit land and claiming that there is no decree for recovery of possession by his eviction. It would be giving a handle to a person who has lost the litigation at all stages. It would also amount to an abuse of the process of the Court,” it added.The petitioners vehemently argued that a decree for permanent injunction cannot be converted to a decree for delivery of possession and a direction to deliver possession cannot be granted as the same does not fall within the purview of Order XXI Rule 32 CPC, rather comes under Order XXI Rule 35 CPC. However, the Court was of the view that the decree-holders are only asking for enforcement of the decree of permanent injunction passed in their favour whereby their possession over the suit-land was confirmed and an order of restraint was passed against the judgment-debtors. In other words, eviction of the judgment-debtors/petitioners is a condition precedent for executing the injunction decree. Therefore, it cannot be said to be a prayer beyond the original decree.Accordingly, no fault was found with the impugned order, which was upheld. The Court, however, lamented the snail-paced progress in the case which keeps lingering for more than four decades. Justice Mishra expressed his anguish by observing –“Long before, in the case of General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing, it was said by the Privy Council that the problems of a decree holder begin after...

Decree Confirming Possession Can Be Enforced By Evicting Judgment Debtor Who Forcibly Re-Enters: Orissa High Court

Jyoti Prakash Dutta

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