@JUDGMENTTAG-ORDER
Aravind Kumar, J.@mdashJudgment debtor in Execution Petition No. 27/2011 being aggrieved by order dated 30.04.2014 passed by II Addl. Civil Judge, Bangalore Rural District, Bangalore - Annexure-F allowing the application filed by decree holder under Order 26 Rule 9 CPC is before this Court seeking for quashing of the same.
2. I have heard the arguments of Sri K. Suman, learned Advocate appearing for petitioner and Sri. S.N. Prashanth Chandra, learned Advocate appearing for respondent.
3. It is the contention of Sri K. Suman, learned Advocate appearing for petitioner that Executing Court could not have entertained the application under Order 26 Rule 9 CPC for collection of evidence when execution petition filed by respondent - decree holder is for alleged violation of judgment and decree and in such an event, only remedy available to decree holder is to tender evidence to establish the fact that there has been violation of injunction order and thereafter proceed to pass orders on execution petition. He would elaborate his submission by contending that in the instant case, though decree holder very well knew even at the time of filing of suit itself that judgment debtor had sold the property and it was not in his possession, question of alleged violation did not arise. Hence, he seeks for setting aside the impugned order.
In support of his submissions, he has relied upon the following judgments:
"(1)
(2)
(3)
4. Per contra, Sri Prashanth Chandra, learned Advocate appearing for respondent defending the impugned order would contend that Section 47 CPC empowers Executing Court to adjudicate all disputes relating to the decree put into execution and as such, Executing Court in order to ascertain as to whether there has been violation of decree insofar as immovable property in respect of which decree holder had obtained a decree for permanent injunction had ordered for appointment of a Court Commissioner in order to ascertain identity of the suit property and there is no error in said order. In support of his submissions, he has relied upon the following judgments:
"(1)
(2)
5. Perusal of the records would indicate that respondent-decree holder has obtained a decree for perpetual injunction against writ petitioner in O.S. No. 764/2008 on 25.05.2009. Said judgment and decree which is at Annexure-A would clearly indicate that defendant therein i.e., writ petitioner has been restrained by permanent injunction from interfering with peaceful possession and enjoyment of suit property by plaintiff. Alleging that defendant has violated decree of permanent injunction and seeking for his arrest and detention in civil prison, execution petition in question came to be filed. Decree holder has to establish wilful disobedience of the decree of injunction by producing cogent evidence before the Executing Court. It is open to the decree holder to establish the alleged breach committed by defendant/judgment debtor and in the said Execution proceedings application to collect evidence for identifying the suit property would not arise and same is impermissible, particularly when execution proceedings relate to alleged violation of judgment and decree of permanent injunction.
6. There cannot be any dispute with regard to the proposition that if decree holder has been dispossessed of the property, Executing Court cannot order for restitution. But on the other hand, if the evidence tendered by the decree holder is sufficient enough to arrive at a conclusion that there has been wilful disobedience of judgment and decree on the part of judgment debtor, then, necessary consequences as contemplated under Order 21 Rule 32 CPC would follow. In that view of the matter, this Court is of the considered view that order appointing Court Commissioner to identify the property in respect of which plaintiff - decree holder has obtained an injunction cannot be sustained. However, this order would not come in the way of petitioner - decree holder establishing that there has been alleged violation on the part of judgment debtor and Executing Court shall independently consider the same, as also maintainability of Execution Petition in view of the contentions raised by judgment debtor. All contentions in this regard are kept open and no opinion is expressed on merits of the case.
7. Hence, I proceed to pass the following:
"ORDER
(1) Writ petition is hereby allowed.
(2) Order dated 30.04.2014 passed on I.A. No. 5 by II Addl. Civil Judge, Bangalore Rural District, Bangalore in Ex. No. 27/2011 - Annexure-F is hereby quashed.
(3) I.A. No. 5 filed under Order 26 Rule 9 CPC -Annexure-D is hereby dismissed subject to observations made herein above."
Ordered accordingly.
