CHAKRADHAR PAITAL DECEASED BY LRS Vs. GELHI BEWA DECEASED BY LRS

JUDGEMENT

(1.) Judgment-debtors in Execution Case No. 4 of 2009 of the court of the learned Civil Judge (Junior Division) Second Court. Cuttack have filed this writ application challenging the order dated 27-12-2010 passed by the Executing Court rejecting their objection to execution. The decree holder-opposite parties fifed T.S.No. 6 of 1987 against the judgment-debtors and some of their predecessors-in-interest for permanent injunction. The suit was decreed on 24-6-1995 injuncting permanently the defendants-judgment-debtors from interfering with the peaceful possession of the decree holders over the suit land. The decree holders filed Execution Case No. 4 of 2009 for executing the decree by way of recovery of possession on the assertion that on 6-3-2009 the judgment-debtors interfered with their peaceful possession and forcibly encroached the suit land by disposessing them. The judgment-debtors filed their objection to the execution petition contending that the decree being one for permanent injunction, it could not be executed by way of recovery of possession of the suit land and that the execution proceeding was barred by limitation. The judgment-debtors also further prayed for stay of execution case on the ground that they had filed Title Appeal No. 79 of 1995 challenging the decree in question and that the appeal having been dismissed for default they filed an application under Section 151, C.P.C. for restoration which was pending. The Executing Court rejected all the contentions raised by the judgment-debtors and refused to stay the execution case by the impugned order.

(2.) In assailing the impugned order, Mr. M.R. Panda, learned counsel for the petitioners has raised the following contentions :

(3.) Learned counsel for the opposite parties, on the other hand, submits that a decree for perpetual (prohibitory) injunction can be enforced by way of recovery of possession, if it is found that after passing of the decree, the decree holder have been dispossessed by the judgment-debtors, in which event the decree holders cannot be forced to file a separate suit. It is also his submission that by virtue of insertion of the Explanation to sub-rule (5) of Rule 32 of O. 21, C.P.C. in 2002, the execution of a decree of prohibitory injunction is no more confined to the modes, envisaged in sub-rule (1) of Rule 32 above but can also be executed by, other modes as per provision of sub-rule (5), as for instance, where a decree for perpetual injunction has not been obeyed by the judgment-debtors, the executing Court can direct for recovery of possession if the same is required for enforcement of the decree. He also contends that execution of a decree of perpetual prohibitory injunction is not subject to any period of limitation as per the proviso to Art. 136 of the Limitation Act and that Article 135 of the Limitation Act has no application to such a case.