Saturday 11 March 2017

Whether provisions of CPC relating to execution of decree shall apply to execution of order?

The   Learned   Counsel   for   the   Petitioner   herein   has   drawn   my
attention to Section 36 of the Civil Procedure Code. It is posited in Section

36 that the provisions of this Code relating to the execution of decrees
(including provisions relating to payment under a decree) shall, so far as
they are applicable, be deemed to apply to the execution of the Orders
(including payment under an Order). Hence the finding of the Executing
Court that the said Application Exhibit 21 was not tenable cannot be
sustained in the light of the Section 36 of the CPC. However, even if the
said Application for execution is tenable, considering the fact that the
Petitioners have invoked Order 21 Rule 32 of the CPC, the Executing
Court   would   have   to   adjudicate   upon   the   said   Application   on   the
touchstone of the said provision as also sub Rule 5 of Rule 32 of the CPC.
It is only after the Executing Court is satisfied that there is a willful
default / disobedience of the said Order that the said provision under
Order   21   Rule   32  could   be   invoked.   In  that  view  of  the   matter,  the
impugned Order is set aside and the matter is remanded back to the
Executing Court for a denovo consideration of Exhibit 21 in the light of
the observations made herein above. 
IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4849 of 2010
Dina Dora Sukhia 
V
Jimmy Dora Sukhia 
CORAM :   R.M.SAVANT, J.
          DATE     :   7th DECEMBER,  2011
Citation: 2012 (1) ALLMR 555

1 Rule. With the consent of the parties made returnable forthwith and
heard.
2 The above Petition takes exception to the Order dated 21­4­2010
passed by the Learned Civil Judge, Senior Division, Pune, by which Order,
the   Learned  Judge   has  rejected  the  Application  Exhibit  21  in   Special
Darkhast No.119 of 2006 filed by the Petitioner i.e the original Defendant,
for execution of the Order dated 4­10­2004 as not tenable.
3 It s not necessary to burden  this Order  with unnecessary facts.
Suffice it to say that an Order came to be passed on 6­8­1999 in Special
Civil  Suit  No.430 of  1995,  whereby the  Plaintiff  was restrained from

entering   into   the   porch   or   verandah   in   the   residential   house   of   the
Defendant No.1
4 It appears that against the said Order dated 6­8­1999, an Appeal
from Order was filed being Appeal from Order No.831 of 2009 which
Appeal was admitted and ultimately came to be disposed of on 4­10­2004.
In the said Appeal, a statement was made that the heirs of the Defendant
No.1 i.e. the Respondent Nos.2 and 3 to the said Appeal would be made
available the same facility in the matter of parking of vehicle as was made
available to the Defendant No.1. The said statement has been recorded in
the said Order dated 4­10­2004. It is the case of the Petitioner herein that
the Plaintiff has not abided by the said statement made by the Counsel as
recorded in the order dated 4­10­2004. As the Respondent Nos.2 and 3
have not been allowed to park their vehicles, the Respondent Nos.2 and 3
therefore, applied for execution of the said Order dated 4­10­2004 and
invoked Order 21 Rule 32 of the Civil Procedure Code, for committing the
Plaintiff to Civil Prison. The said Application was numbered as Exhibit 21
which has been disposed of by the impugned order dated 21­4­2010. As
indicated above, the said application Exhibit 21 has been rejected on the
ground that it is not tenable as it is an Order passed and not a decree
which is executable. 
5 The   Learned   Counsel   for   the   Petitioner   herein   has   drawn   my
attention to Section 36 of the Civil Procedure Code. It is posited in Section

36 that the provisions of this Code relating to the execution of decrees
(including provisions relating to payment under a decree) shall, so far as
they are applicable, be deemed to apply to the execution of the Orders
(including payment under an Order). Hence the finding of the Executing
Court that the said Application Exhibit 21 was not tenable cannot be
sustained in the light of the Section 36 of the CPC. However, even if the
said Application for execution is tenable, considering the fact that the
Petitioners have invoked Order 21 Rule 32 of the CPC, the Executing
Court   would   have   to   adjudicate   upon   the   said   Application   on   the
touchstone of the said provision as also sub Rule 5 of Rule 32 of the CPC.
It is only after the Executing Court is satisfied that there is a willful
default / disobedience of the said Order that the said provision under
Order   21   Rule   32  could   be   invoked.   In  that  view  of  the   matter,  the
impugned Order is set aside and the matter is remanded back to the
Executing Court for a denovo consideration of Exhibit 21 in the light of
the observations made herein above. The contentions of the parties are
explicitly kept open for being agitated before the Executing Court.  
6 Rule   is   accordingly   made   absolute   in   the   aforesaid   terms   with
parties to bear their respective costs.
         
   
          (R.M.SAVANT, J.)

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