SHAIKH ABDUR RAZZAQ, J. -- Briefly stated the facts are that Ch. Muhammad Ashraf and others plaintiffs/respondents Nos. 1 to 5 instituted a suit for permanent injunction against the defendants/present writ petitioner and Allah Ditta and Bakhtawar Hussain (respondents Nos. 6 and 7) praying that they he permanently restrained from changing the nature of the suit land which was joint property and he also restrained from making any construction thereupon. During the pendency of the said suit, on 21.11.1987 the defendant's counsel made a statement that defendants neither intend nor they would raise any construction on the said joint land. In the wake of the said statement, the said suit was dismissed on 21.11.1987. On 3.12.1989, the plaintiffs moved an application under Order 21, Rule 32, CPC, alleging that defendants have collected building material on the suit land and have also dug foundation for construction of the house in Khasra No. 3222 and they intend to raise construction in violation of their earlier undertaking and they he proceeded against.
The said application was opposed by the writ petitioner and respondents Nos. 6 and 7 on the ground that they had not violated any undertaking.
2. The divergent stand of parties gave rise to the following issues:-
(1) Whether the petitioners have got no cause of action? OPD
(2) Whether the petition is baseless, mala fide and vexatious, if so its effect? OPD
(3) Whether the respondents have violated their undertaking dated 21.11.1987 and raised the construction over the property in dispute in violation of the order dated 21.11.1987? OPP
(4) Relief.
3. Arguments have been heard and record perused.
4. Contention of learned counsel for the petitioner is that as no decree has been passed in the instant case, so the 'application under Order 21, Rule 32, CPC was not maintainable, that an application under Order 21, Rule 32, CPC is only maintainable if violation of some decree has been committed, that as in the instant case, no decree has been passed and the suit has been dismissed on the basis of an undertaking given by their learned counsel, so the very application under Order 21, Rule 32, CPC was not maintainable, that both the Courts below had no jurisdiction to pass the orders referred above which are (mum non judice, as such writ petition is maintainable which he accepted and the said orders he declared a nullity in the eyes of law.
5. Conversely, the contention of learned counsel for the plaintiffs/respondents Nos. 1 to 5 that the undertaking given by the writ petitioner and respondents Nos. 6 and 7 amounted to a decree, the violation of which can he proceeded under Order 21, Rule 32, CPC. In support of his contention, he relied upon Qauim Din Vs. Muhammad Yaqui) (PLD 1978 Lahore 842), Muhammad Ashiq alias Ashiq A.I Vs. Razia Begun, and others (PLD 1982 Lahore 459), Muhammad Azum Khan and others Vs. Nohat Khan and others (KLR 1991 Civil Cases 13 (Lahore), Bakhtawar, etc. Vs. Amin, etc. (PLJ 1980 SC 252) and Muhammad Aslam Vs. Mahmood A.I and another (PLD 1992 SC 104). He thus submitted that both the Courts below have passed the impugned orders in accordance with law and the writ petition being devoid of any force, he dismissed.
6. The only point. Which requires determination is, if in the given circumstances, the learned Trial Court could initiate proceedings under Order 21, Rule 32, CPC. In order to appreciate the contentions raised by learned counsel for the parties, a perusal of Order 21, Rule 32, CPC is necessary which is reproduced as follows:- "Decree for specific performance, for restitution of conjugal rights, or for an injunction. -- (1) Where the party against whom a decree for the specific perfomance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it,-the decree may he enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of contract or for an injunction by his detention in prison, or by the attachment of his property, or by both.
(2) Whether the party against whom a decree for specific performance or for an injunction has been passed Is a corporation, the decree may he enforced by the attachment of the property of the corporation or with the leave of the Court, by the detention in prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (I) or sub-rule (2) has remained in force for one year, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may he sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance if any to the judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is hound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where a decree tor specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the process aforesaid, direct that the act required to he done may he done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done by the expenses incurred may he ascertained in such manner as the Court may direct and may he recovered as if they were included in the decree."
7. A perusal of Order 21, Rule 32, CPC clearly shows that proceedings can he initiated only where the party against whom a decree has been passed. In the instant case, admittedly the suit was dismissed on the undertaking of the writ petitioner and respondents Nos. 6 and 7 and consequently no decree was passed. The stand of the plaintiffs/respondents Nos. 1 to 5 is that as the suit was dismissed on the basis of the undertaking given by the writ petitioner and respondents Nos. 6 and 7, so the said decision shall amount to a decree of the suit and the person violating the said undertaking can be proceeded under Order 21, Rule 32, CPC. Learned counsel for respondents Nos. 1 to 5 has relied upon the authorities which have been cited above. A perusal of all these authorities reveals that in none of the said authorities, point in issue has been adjudicated upon. In PLD 1978 Lahore 842, the matter in issue related to the provisions of Order 23, Rule 1 (3), CPC. Similarly, in PLD 1982 Lahore 459, the question pertained to Sections 54 and 55 of the Specific Relief Act, 1877. In KLR 1991 Civil Cases 13 (Lahore), the matter pertained to the interpretation of Section 115, CPC. It has been held in the said authority that decrees of prohibitory injunctions can be enforced through the Executing Court by invoking coercive provisions of law contained in Order 21, Rule 32 (1)(2)(3), CPC.
There is no cavil to this proposition that decrees of prohibitory injunctions can he got enforced by invoking the provisions of Order 21, Rule 32, CPC. But in the instant case, decree has not been passed in favour of the plaintiffs/respondents Nos. 1 to 5. On the other hand, their suit has been dismissed on the basis of the undertaking given by the writ petitioner and respondents Nos. 6 and
7. Thus, the authority .Cited above is not applicable to the facts in hand. In PLD 1992 SC 104, the point involved was absolutely different and it pertained to Order 39, Rule 2 (3), CPC. Thus, the authorities cited by the learned counsel for the plaintiffs/respondents Nos. 1 to 5 are not relevant to the issue involved in the instant writ petition. If the decree had been passed in favour of the plaintiffs/respondents Nos. 1 to 5 and had been violated by the writ petitioner and respondents Nos.
6 and 7, the said decree could be got enforced by invoking the coercive provisions of Order 21, Rule 32, CPC. Admittedly, the position is reverse as the suit has been dismissed. There being no decree in the field in favour of plaintiffs/respondents Nos. 1 to 5, no application under Order 21, Rule 32, CPC could he moved by the plaintiffs/respondents. Thus, the order passed by the learned Trial Court as well as the first Appellate Court are coram non judice and- are not sustainable. Accordingly, writ petition is accepted and the orders dated 17.2.1992 and 14.6.1992 passed by the learned Civil Judge, Kahuta and the learned Additional District judge, Rawalpindi are declared to have been passed without lawful authority.