Oral Judgment:
1. Rule. Rule made returnable forthwith. By consent of the parties, the matter is heard for final disposal.
2. Subject matter :
During execution of a Decree for perpetual injunction, the Decree-holders filed an application below Order 26 of the Code of Civil Procedure for appointment of Commissioner to fix the boundaries. The Judgment-debtors have challenged appointment of court commissioner on the count that (I) they have not committed any breach of injunction, and (ii) court commissioner can not be appointed for the purpose of collection of evidence.
As such, order passed by the Executing Court appointing court commissioner is the subject-matter of present Writ Petition.
3. The petitioner has put-forth following two prayers :
“B. By issuing writ of ertiorari or any other appropriate writ, order or directions in the like nature the order dated 13.03.2024 passed by the Learned Civil Judge Senior Division, Osmanabad allowing the application below Exh.11 in R.D. No.23 of 2019 may kindly be quashed and set aside.
C. By issuing writ or mandamus or any other appropriate writ, order or directions in like nature the Respondent No.2 to measure whole Survey No.574 including it sub parts while fixing the Boundaries and install the permanent Boundaries Marks respectively.”
4. Facts in brief:
a) It is an undisputed fact that the respondent instituted a suit for declaration and injunction against the petitioners i.e. Regular Civil Suit No.226 of 2007 in the Court of the learned Civil Judge Senior Division Osmanabad. Vide judgment and decree dated 18.06.2011, the suit came to be decreed by the Civil Court. The defendants against whom the decree was drawn, have not assailed the said decree thereafter and as on today the judgment and decree passed in the suit of 2007 holds the field.
b) Subsequently, contending that the petitioners have breached the injunction, the respondent/decree holder took recourse to Order XXI Rule 32 read with Sections 47 and 51 of the Civil Procedure Code for execution of the decree for injunction.
c) In the execution proceedings, the respondents/decree holders also filed an application below Exhibit 11 under Order XXVI of the Civil Procedure Code, thereby seeking appointment of a Court Commissioner for measurement of the land.
d) The said application was opposed by the present petitioners. However, after hearing both the parties, vide the impugned order dated 13.03.2024, the learned Civil Judge, Senior Division, Osmanabad pleased to reject the said objection. Hence, the petitioners/judgment debtors are before this Court.
5. Submissions :
a) Mr. Koshti, learned advocate for the petitioners would submit that the petitioners have bonafidely submitted that they are not in any breach of the injunction order or otherwise. He submits that in fact there is absolutely no cause of action to file the execution petition for the reason that the petitioners have not caused any breach of injunction nor had any intention to do so. He points out to the execution form/application filed by the respondent and would contend that the same does not speaks out that the Petitioner has any way destructed or eliminated the boundary marks. It is in application at Exh.11 the respondent alleged that the Petitioners have contracted the boundary marks.
b) It is further submitted by Mr. Koshti, learned advocate that in view of this, the respondents/decree holders under the garb of the breach of injunction alleged against them are trying to take undue benefit of the decree. He further submits that the facts demonstrate that the application is filed for collection of evidence which is deprecated in a series of judgments passed by the Honorable Supreme Court as also by this Court.
c) Mr. Koshti, learned advocate for the petitioners to conclude his arguments would also submit that vide the order passed by the Executing Court, it has gone behind the decree which is not permissible in the light of the law laid down by the Hon’ble Supreme Court in Brakewel Automotive Components (India) Private Limited vs. P. R. Selvam Alagppan reported in (2017) 5 Supreme Court Cases 371. With this, learned advocate for the petitioners prays to allow the writ petition by setting aside the appointment of court commissioner.
d) Mr. R.V. Naiknavare, learned advocate appearing for the respondents/decree holders would however oppose the petition. He would submit that the proceedings filed by them are at the initial stage. That, the Executing Court has not arrived at any conclusion so far as the execution is sought for. He submits that the application filed by the petitioners for execution clearly shows allegations of destruction/removal of boundaries; and hence the respondents/judgment debtors were left with no other alternative than to take recourse to Order XXI Rule 32 read with Sections 47 and 51 of the Civil Procedure Code. With this, he prays to dismiss the writ petition.
6. Consideration :
a) I have heard both the learned advocates at length and perused the pleadings. It is not in dispute that the decree of perpetual injunction is in force against the present petitioners, nor do the petitioners dispute the same. The contention of the petitioners is only that they have not caused any obstruction or committed any breach of injunction as is alleged by the respondent/decree holder. The Petitioners dispute any cause of action.
b) Pleadings in the application filed u/o 21 Rule 11 of Code of Civil Procedure in the Regular Darkhast No. 23 of 2019 shows at its paragraph No.10 specific pleading that the judgment debtor willfully failed to obey the decree.Hence Petitioner’s contention that there are no averments that the Petitioners disobeyed the decree, are factually incorrect. So far Exh.11 is concerned, the copy is before me. In the application below Exhibit-11, the decree holders have contended that the judgment debtors have destroyed the boundary marks even after filing of the Darkhast, whereby the applicants were constrained to file an application for appointment of Court commissioner.
c) Needless to mention, the petitioners have every right to defend the execution petition on its own merits including deficit pleadings in the execution petition, cause of action etc. Obviously the burden is casted upon the execution petitioners to show that a cause of action has arisen to file the proceedings. This Court has taken on record the contention of Mr. Koshti, learned advocate for the petitioners that in the main execution petition the decree holders have not mentioned any cause of action and that the cause of action has been subsequently set out in the application below Exhibit-11. The contention is dealt by this Court supra. Be that as it may, ,it would be for the execution petitioners to demonstrate that there was a cause of action to file the execution petition on the date on which it was filed.
d) So far as the present challenge to the appointment of a Commissioner under Order XXVI of the Civil Procedure Code is concerned, there could be no dispute over the settled position of law that a Commission cannot be appointed for the purpose of collecting evidence for a party.
e) I have gone through the text of the impugned order wherein the Executing Court has directed the Commissioner to fix the boundaries and install permanent boundary marks in respect of the suit property in the execution petition. Needless to say, such directions are beyond the scope of the object under Order 26 of the Code of Civil Procedure, and cannot be sustained. Hence, to that extent, the directions issued by the Executing Court need to be quashed and set aside.
f) It would beneficial to go through the text of Order 21 Rule 32, Section 47 and 51 of Code of Civil Procedure in the given context. For the sake of convenience, the relevant provisions are reproduced hereinbelow :
| “Order XXI Rule 32(1), Civil Procedure Code:“Where the party against whom a decree for the specific performance of a contract or for an injunction has been passed has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for the specific performance of a contract or of an injunction by his detention in the civil prison, or by the attachment of his property, or by both.” Section 47, Code of Civil Procedure: “All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.” |
| Section 51, Code of Civil Procedure:“Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree— (a) by delivery of any property specifically decreed; (b) by attachment and sale or by sale without attachment, of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied— (i) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree— (a) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (b) has, after the institution of the suit in which the decree was made, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (ii) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (iii) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.” |
h) Now, in so far as the judgments cited by the petitioners supra to the extent of the proposition of law that the Executing Court cannot go behind the decree is concerned, I have no reason to disagree with the said proposition. However, in the present case the position is much different on facts. The respondents/decree holders have filed the execution petition for enforcement of the decree of perpetual injunction. The impugned order of appointing the commissioner is perfectly permissible in law in view of provisions quoted above. Hence with due respect, I record that in the particular facts of this case, the said consideration does not render the entire execution proceeding impermissible.
i) In view of the above discussion, the impugned order deserves to be interfered with only to the limited extent indicated hereinabove. Hence, I pass the following order :
ORDER
I. The Writ Petition is partly allowed.
II. The impugned order dated 13.03.2024 passed by the learned Civil Judge, Senior Division, Osmanabad below Exhibit-11 in R.D. No.23 of 2019 is quashed and set aside to the extent of the directions to fix the boundary marks and install permanent boundary marks. The Commissioner shall give notice to the judgment debtors for implementing the commission, shall admeasure the land, prepare map and shall submit the same to the Executing Court.
III. Needless to mention the petitioners/judgment debtors shall have every liberty to raise their objections to the Commissioner's report and to contest the execution proceedings on all permissible grounds in accordance with law.
IV. All contentions are kept open.
V. Writ Petition stands disposed of.
VI. Rule is made absolute in above terms.