' The petitioners/plaintiffs had filed a suit for permanent injunction restraining the respondents/defendants from alienating and raising the construction on the property situated in joint Khata without its partition. During pendency of the suit defendants Nos.1 to 5 made a conceding statement and on their statement the trial Court decided the case on 2-1-1980 as under:-- {{URDU TEXT}} ' No appeal was filed against the said judgment and decree which attained finality.
2. The defendants/respondents in violation of the judgment and decree started selling away some specific portion of the land from disputed Khata and the petitioners were constrained to file an execution petition before the executing Court on 20-2-1989. They made a prayer for initiating action under Order 21, rule 32, C.P.C. Against the judgmentdebtors/respondents. The respondents had filed the objection petition asserting therein that the property had been partitioned privately, the execution petition was not maintainable. The learned executing Court framed the following issues:--
(1) Whether there was any sort of private partition effected by the parties in regard to the impugned Khata 7, if so, when and how?
(2) Whether the application under Order 21, rule 32, C.P.C. Is incompetent? OPRs
(3) Relief.
3. Issue No,1 had been decided against the respondents whereas Issue No,2 was decided against the decree-holder and the execution petition was dismissed. Feeling aggrieved the petitioners preferred an appeal which came up for hearing before the learned Additional District Judge, Daska who dismissed the appeal as well as the cross-objections filed by the respondents. Hence this revision petition.
4. The execution petition was opposed by the learned counsel for the judgmentdebtors/respondents contending that the decree for declaration and injunction was not executable and the learned counsel forcefully supported the findings of both the Courts below.
Learned counsel for the respondents further contended that execution petition was awfully barred by limitation as provided under section 48, C . P.0 .
5. On the other hand, learned counsel for the revision petitioners vehemently opposed the objection of the learned counsel for the respondents contending that the execution petition was within time when the decree was violated by the judgment, debtors/respondents. Further that the provisions of Order 21, rule 32, C.P.C. Are attracted to the present case and in support of his arguments he relied upon the case of Muhammad Hussain and others v. Muhammad Aslam (1988 SCM R 151).
6. I have heard the arguments of learned counsel for the parties and perused the record.
7. Section 48 of the C.P.C. Has barred the execution in certain cases, which reads as under:-- "Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon and fresh application presented after the expiration of six years from--
(a) the date of decree sought to be executed, or
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed--
(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of six years where the judgment-debtor has by fraud or force prevented the execution of the decree at some time within six years immediately before the date of the application; or
(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Limitation Act, 1908."
8. From bare reading of the provisions of above-said law, it reveals that the execution of the decree otherwise than a decree granting of injunction is barred after expiration of six years from the date of decree sought to be executed provided fresh application is made after the prescribed period.
9. So far as the execution of injunction decree is concerned, Order 21, rule 32, C.P.C. Is applicable to such decrees: "Where a party against whom a decree for the specific performance of the contract, or for restitution of conjugal rights, or for an injunction has been passed, has had an opportunity of obeying a decree and has wilfully failed to obey it, the decree may be 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 specific performance of a contract or for an injunction) by his detention in prison, or by the attachment of his property or by both.
' Sub-rule (5) of rule 32 ibid further provides---where a decree for 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 be done may be 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 the expenses incurred may be ascertained in such manner or as the Court may direct and may be recovered as if they were included in the decree."
10. This rule applies to the cases where a party is directed to do some act as well as the cases where' he is directed to abstain from doing an act and such decree for injunction can only be executed in the manner given in this rule. Reliance in this context can be placed to the case of Municipal Committee, Sonepat v. Dharam Chand and others (AIR 1954 Punjab 197). Before allowing execution under this rule against the judgment-debtor, the only condition is that the Court could see if he had any opportunity of obeying the decree or whether he is wilfully failed to obey it.
' Where a decree declaring right of the plaintiff to repair and put up a 'Bund' at the junction of two plots and the defendants were restrained from cutting the Bund or interfering with it in any manner.
It had been held by the Court that the defendants had no opportunity of obeying the decree till the plaintiff had made an attempt to construct a Bund and therefore a decree was incapable of execution under this rule however, was an attempt on the part of the plaintiff to put up a bund and there was an obstruction on the part of the defendants.
11. In the instant case, it was decided by the Court that the defendants would not make any construction on the share of the plaintiffs-decree-holders/petitioners measuring 3-1/2 Marlas and also would not raise construction in Nos.4 to 11 and 65 to 67 and they were restrained from transferring the same in any manner to any person but the petitioners were constrainea to file the execution when the defendants/respondents transferred specific portion of the land to other persons and raised construction on the said land. The provisions of Order 21, rule 32, C.P.C. Are very much attracted. The provisions of Order 21, rule 32, C.P.C. Were examined by the Honourable Supreme Court in the case of Muhammad Hussain and others v. Muhammad Aslam (1988 SCM R 151) observing as under:-- "There is little doubt that the decree passed in favour of the decree-holder against the judgment- debtors was for a declaration as well as permanent injunction restraining them from interfering with the actual and physical possession of the Killa numbers mentioned above. Even on the 17th of March, 1972 the learned counsel for the judgment-debtors unequivocally gave an undertaking to restore the possession of the land to the decree-holder within two months. There is hardly any force in the contention that the decree was purely declaratory and as such was not executable at all.
' Before us the learned counsel also contended that in this case, for the alleged breach of the prohibitory order under clause (5) of rule 32 of the Order 21 of the Code of Civil Procedure, the respondent/decree-holder was not entitled to any specific relief. In support of this contention he relied on the pronouncement in Burhanuddin Ahmad and others v. Veda Brata Shakaraborti and others PLD 1954 Dacca 651. But it does not necessarily mean that thereby the petitioners were liable to escape the penalties and consequences of the breach of the decree for injunction as laid down in clauses (1), (2) and (3) of rule 32 of Order 21 of the Code. In this connection reference may be made to the pronouncement in Angad and others v. Mudhe Ram and others AIR 1938 All. 416 and Hem Chandra Naskar and another v. Narendry Nath Bose and others AIR 1934 Cal. 462, while Order 21, rule 32, clauses (1), (2) and (3) apply to both classes prohibitory and mandatory injunctions and enable the decree-holder to put the judgmeht-debtors into civil prison and to attach the judgment-debtor's property and by these means to compel him to obey the decree.
' This rule was further followed in case of Muhammad Azam Khan and 7 others v. Nobat Khan and 3 others (1990 MLD 14501) and Sachi Prasad Mukherjee v. Amar Nath Rai Chowdhury and others (Calcutta Vol. XLV 1918 (864) observing that decree of a prohibitory injunction can be enforced through the executing Court by invoking the question contained in Order 21, rule 32(1), (2) and (3), C.P.C."
12. Both the Courts below have misconstrued the provisions of Order 21, rule 32, C.P.C. And passed the impugned order in violation of the principle laid down in the above cases and in such-like circumstances, the High Court can set at naught the concurrent findings of the Courts below.
13. For the foregoing reasons, this revision petition is accepted. The orders, dated 27-6-1991 and 8- 11-1994 passed by both the Courts below are set aside. The execution petition filed by the petitioners shall be deemed pending before the Executing Court and the said Court will proceed therewith, under the law.