Decree Holder Having Relief Of Permanent Injunction Can File Execution Petition To Evict Judgment Debtor If He Interferes With Possession: Orissa High Court

The judgment debtors in an Execution Case approached the High Court by filing an application under Article 227 assailing the order confirming the order of the executing Court.

The Single Bench of Justice Sashikanta Mishra held, “Having held as above, this Court finds that the Executing Court took note of the objections raised and 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 Revisional Court has also vividly discussed the questions raised to hold that the decree holder having got the relief of permanent injunction can file an execution petition to evict the judgment debtor whenever he is found to have interfered with the possession of the decree holder. This Court fully concurs with the reasoning adopted by the Revisional Court.”

M/s.Ajit Ch. Mohapatra represented the Petitioner while M/s. S.C. Samantary represented the Respondent.

Factual Background

The father of the opposite parties (decree holder) had filed a suit against the father of the petitioners (judgment debtor) for declaration of right, title, interest, confirmation of possession and permanent injunction over a Schedule property prescribed in the plaint. The suit was decreed by declaring the title of the plaintiff, confirming his possession and by permanently restraining the defendant from interfering with his possession. The defendant carried an appeal which was dismissed, confirming the judgment and decree of the trial Court. The decree holder lodged execution alleging that the judgment debtor forcibly occupied the Schedule land. Upon receiving notice, the judgment debtor filed an objection under section 47 of CPC. The said application as well as the petition questioning the maintainability of the execution case, was also rejected.

The executing Court directed the decree holder to take necessary steps and pay the fees for issuing a writ of delivery of possession by evicting the judgment debtor. The judgment debtor again filed an application under Section 47 of CPC, which was dismissed. The executing Court was of the view that the decree of confirmation of possession can only be satisfied by granting recovery of possession by evicting the judgment debtor from the suit land. The executing Court also found that the same issue, having been raised earlier by the judgment debtor, had been considered and rejected. The executing Court dismissed the application under Section 47 CPC. The judgment debtors’revision also came to be dismissed. Thus, the petition came to be filed before the High Court against the dismissal of the revision.

Reasoning

The Bench took note of the fact that multiple applications questioning the maintainability of the execution case were filed by the judgment debtor and rejected. The latest application filed by the judgment debtor was the third such application, his previous two applications being rejected. “Fundamentally, repeated applications being filed more or less on the same issue cannot be entertained adopting the principles of res judicata, though not res judicata proper”, it added.

The Bench found that the Executing Court took note of the objections raised and rightly held that the decree of confirmation of possession could only be satisfied by evicting the judgment debtor from the suit land. The case involved the removal of an obstruction caused by the judgment debtor to enforce the decree of confirmation of possession. “The Revisional Court has also vividly discussed the questions raised to hold that the decree holder having got the relief of permanent injunction can file an execution petition to evict the judgment debtor whenever he is found to have interfered with the possession of the decree holder. This Court fully concurs with the reasoning adopted by the Revisional Court”, it stated.

Considering that it was alleged that the defendant had interfered with the possession of the decree holder by forcibly entering into the suit property, the Bench held that the execution case cannot be held to be barred by limitation in view of the specific provision under Article 136 of the Limitation Act.

“In the instant case, the decree holder is asking for enforcement of the decree passed in his favour, inasmuch as his possession having been confirmed and there being an order of restraint passed against the defendant, he sought for removal of the defendant in line with the decree for permanent injunction. It cannot be construed that he is seeking something beyond the decree”, it further held.

Thus, dismissing the petition, the Bench directed the executing Court to proceed with the execution case as expeditiously as possible.

Cause Title: Kalyani Swain v. Bijay Kumar Swain (Case No.: CMP No. 153 of 2024)

Appearance

Petitioner: Advocates M/s.Ajit Ch. Mohapatra, A.K. Panda, B.K. Panda

Respondent: Advocates M/s. S.C. Samantary, G.K. Sahoo

Click here to read/download Order