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

Print Page

Whether a party can execute interim order of injunction without proving willful default?

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 de novo 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.

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.4849 of 2010

IN THE  HIGH COURT OF JUDICATURE AT BOMBAY

Dina   Dora   Sukhia   Vs Jimmy Dora Sukhia

CORAM :   R.M.SAVANT, J.

ORAL JUDGMENT :

          DATE     :   7th DECEMBER,  2011

Citation: 2012(1)ALLMR555, 2012(3)BomCR138, 2012(2)MhLj735,2012(1)AIRBOMR863

Print Page