(Prayer: Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased to call for records pertaining to the order dated 27-11- 2024 made in E.P.No.78 of 2023 in O.S.No. 17 of 2012 the file of the Principal Senior Civil Judge, Kurnool and set aside the on same by directing to appoint Advocate Commissioner to execute the Deere and Judgment with the assistance of Police personnel and pass such

IA NO: 1 OF 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to suspend the operation of the order dated 27-11-2024 passed in EP No.78/2023 in OS No. 17/2012 by the Principal Senior Civil Judge, Kurnool by directing to execute the Decree through an Advocate Commissioner and pass such)

1. This Civil Revision Petition is filed questioning the legality and correctness of the order dated 27.11.2024 passed in E.P.No.78 of 2023 in O.S.No.17 of 2012 by the learned Principal Senior Civil Judge, Kurnool.

2. The petitioner is the Decree Holder and the respondent is the Judgment Debtor.

3. The Execution Petition filed by Decree Holder under Order 21, Rule-32 CPC to remove the obstructions of the plaint ABCD and to remove the newly opened door was dismissed by the Executing Court on the ground that violation of decree for injunction can be enforced only by detention of J.Dr. in the civil prison or by the attachment of his property or by both, but not otherwise and hence the Decree Holder cannot seek for removal of obstructions of the plaint ABCD and to remove newly opened door at ABCD in the plaint plan.

4. Heard Sri JUMV Prasad, learned counsel for the petitioner. The personal notice sent to respondent was returned unserved with endorsement ‘refused’, which can be treated as deemed service of notice, but none represented the respondent.

5. Sri JUMV Prasad, learned counsel for the petitioner, while reiterating the grounds of the Civil Revision Petition would contend that the executing Court upon erroneous view of the matter that violation of decree for injunction can only by detention of J.Dr. in the civil prison or by attachment of property, but not by seeking removal of obstructions dismissed the execution petition. He would further submit that the Executing Court upon misinterpretation of Order-21, Rule 32 of CPC passed the impugned orders and hence they are liable to be set aside. Accordingly, prayed to allow the Civil Revision Petition.

6. Perused the material available on record and considered the submissions made by learned counsel for the petitioner.

7. The suit was decreed declaring the right and title of the plaintiff in the plaint schedule property marked as MNOP in the plaint plan, for mandatory injunction directing the defendant to remove the newly opened door-way marked as ABCD in the plaint plan, which is southern wall, within 60 days, or else the plaintiff is at liberty to get it done through process of law and for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property marked as MNOP in the plaint plan.

8. The Decree Holder filed the Execution petition for enforcement of decree for mandatory injunction for removal of the newly opened door.

9. Rule 32 of Order XXI of Code of Civil Procedure deals with the execution of decree for restitution of an injunction. For quick reference, the same is extracted hereunder:

                  “(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 injunctions 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 directors 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 s 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 here, at the end of six months from the date of the 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 processes 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.”

10. Admittedly, as held by the Executing Court, Sub-Rule (2) of Rule-32 of Order-XX1 provides that the decree for injunction may be enforced by detention of the Judgment Debtor in the civil prison, or by the attachment of his property, or by both. However, Sub-rule (5) of Rule 32 empowers the executing Court to direct the removal of encroachment without first effecting the attachment of the property of the Judgment Debtor or sending him to the civil prison as envisages in Sub Rule(2) of Rule 32. Therefore, the order of the executing Court impugned in this Civil Revision Petition that the Decree Holder cannot seek for removal of obstructions of the plaint ABCD and to remove newly opened door at ABCD in the plaint plan, is unsustainable and the same is contrary to what was envisaged in Sub Rule (5) of Rule 32 CPC. Therefore, the impugned dismissal order of the executing Court is liable to be set aside.

11. Accordingly, the Civil Revision Petition is allowed, setting aside the order dated 27.11.2024 passed in E.P.No.78 of 2023 in O.S.No.17 of 2012 and the executing Court shall take steps for enforcement of the decree in accordance with law. There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.