Once Suit For Permanent Injunction Stood Decreed, Executing Court Cannot Render Said Decree Nugatory: Punjab And Haryana High Court

The bench comprising Justice Alka Sarin held that from the observations made by Executing Court dismissing the application for providing police help to the petitioner, it is clear that the same are perverse and illegal.

Thus, the Executing Court has found that the respondent no.1 is a co-sharer in the suit property but also that the petitioner ought to file a suit for partition. The said findings recorded by the Executing Court are perverse and illegal on the face of it.

Brief facts relevant to the present lis are that the petitioner claiming to be the owner in possession of the suit property filed a suit for permanent injunction for restraining the respondent no.1 from interfering in his possession. The said suit was decreed. Respondent no.1 challenged the judgment and decree by way of appeal which was dismissed. Thereafter, the High court vide a common judgment dismissed both the regular second appeals filed by respondent no.1 against the judgments and decrees passed by the Courts decreeing the suit of the petitioner.

Two Special Leave Petitions were preferred before the Supreme Court against that judgment that were dismissed as withdrawn.

After considering the rival submissions of the parties, the court held that the present case has a chequered history and the petitioner, who has succeeded in his suit for an injunction even in the Supreme Court, is struggling to reap the fruits of the decree.

Court noted that in Trial Court, respondent no.1 did not raise the defense that he is a co-sharer. He did not even challenge the judgment which stated that the petitioner was in possession of the suit property. Due to which, this Court is unable to accept the findings recorded by the Executing Court stating that respondent no.1 is a co-sharer in the suit land.

That being the position, this Court is unable to accept the findings recorded by the Executing Court that the respondent no.1 is a co-sharer in the suit land.

Court further added that the Executing Court cannot render a decree nugatory once the suit for permanent injunction stood decreed which it did so in the present case and by doing so it has exceeded the jurisdiction vested in it.

Further, once the suit for permanent injunction of the petitioner stood decreed the Executing Court could not render the said decree nugatory by holding that the petitioner ought to file a suit for partition. The impugned order passed by the Executing Court shows that it (the Executing Court) permitted the respondent no.1 to set-up a case beyond that pleaded by him in the suit itself. The Executing Court clearly traversed beyond the decree dated 24.08.2002 which it was called upon to execute and exceeded the jurisdiction vested in it.

Commenting on the facts of the case, the court stated that the petitioner had filed the suit for a permanent injunction against respondent no.1 which stands decreed in his favor and the said decree stands affirmed up to the Supreme court and police help was sought for enjoying this outcome.

In the present case the petitioner has sought police help only for raising construction on the portion owned by him and possessed by him and not beyond the area of the sale deed in his favour.

Further negating the argument that respondent no.1 is a co-sharer in the property, the court held that the ownership was neither pleaded nor proved for any part of the suit land.

Moving on to the case of the petitioner who has filed an application for providing police help for enforcement of the judgment and decree, the court stated that the alleged act of the respondents trespassing and kidnapping the laborers is clearly in violation of the decree and not in due course of law.

Accordingly, the court set aside the order passed by the Executing Court for being illegal and suffering from jurisdictional errors and allowed the application filed by the petitioner for providing police help for enforcement of the judgment and decree that was passed in his favor.

Case Title: Yoginder Kumar Sud  versus Thakur Rajiv Singh and Another 

Citation: 2022 LiveLaw (PH) 83

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