MUHAMMAD AZAM KHAN Versus NOBAT KHAN.

This civil revision is directed against the order, dated 11‑7‑1974, by which the learned District Judge Campbellpur (now Attock), accepting the appeal of Nobat Khan and others, the respondents herein (judgment‑debtors), set aside the order, dated 5‑11‑1973, passed by the Administrative Civil Judge, Campbellpur (now Attock) whereby he, after accepting the application of Muhammad Azam Khan and others, the petitioners herein (decree‑holders), made under Order XXI, Rule 32, C.P.C. had issued warrants of arrest against the respondents (judgment‑debtors) for their detention in civil prison and also directed the attachment of their property till they complied with the decree of that Court, dated 17‑4‑1969, restraining them (respondents) from interfering in the possession of the disputed property, belonging to, and in possession of, their opponents.

2. The brief facts leading up to this revision are that Hayyat Khan, petitioner No.8 herein, had sold marla of land from Khasra No. 873 and two kanals of land (5/64 share) out of Khasra Nos. 872, 874, 876 and 877, total measuring 25 kanals, 12 marlas, situated in the area of village Wardag, Tehsil Attock, to Nobat Khan and three others, respondents Nos. 1 to 4 herein, by a sale- deed, wherein it was alleged that possession of two kanals of land had been given to the vendees towards the western portion of Khasra No. 872. Muhammad Azam Khan and others co‑owners brought a suit against the respondents (judgment -debtors) and also impleaded Hayyat Khan vendor as a pro forma defendant, for seeking a declaration to the effect that the sale so made was illegal being in violation of Martial Law Regulation No.64. They also alleged that since the vendor was not in possession of any portion of joint holding on its western side, he could not put the vendees in possession' of any particular portion of the land sold by him. They also prayed for the consequential relief of perpetual injunction restraining their opponents from taking possession of any portion of the suit land.

3. The suit was resisted by the respondents and it was eventually decreed on 17‑4‑1989. It was held that Hayyat Khan vendor was not competent to sell western portion of Khasra No.872 and deliver its possession to the vendees so they were restrained from interfering in the possession of the petitioners over the disputed land for all times to come. The respondents preferred an appeal against the judgment and decree of the learned Administrative Civil Judge but it was dismissed by the learned Additional District Judge at Campbellpur, vide his judgment and decree, dated 11‑4‑1974.

4. The petitioners (decree‑holders) applied to the trial Court for the execution of the said decree, alleging therein that despite prohibitory order respondents Nos. 1 to 4 were not removing the material collected by them for raising some construction and were in fact constructing a wall forcibly and for that reason they should be put in the civil prison and their property should be attached till they obeyed the prohibitory order.

5. The application was contested by respondents Nos. 1 to 4 on the ground that after the rejection of their appeal the parties had effected compromise and by a private partition the disputed property had fallen to their lot and for that reason they constructed the wall thereon. They contended that they had been in possession of the disputed portion of the land ever since they had purchased it from Hayyat Khan vendor.

6. On the pleadings of the parties learned executing Court framed the following issues:‑‑

Issues:

(1) Whether respondents 1 to 4 have disobeyed the order of the Court?

(2) Relief.

7. After recording the evidence of the parties and hearing their counsel, the learned trial/executing Court, vide its order dated 5‑12‑1973, came to the conclusion that the order issued against respondents Nos. 1 to 4 being a simple prohibitory injunction and not a mandatory one, therefore, clauses (i) to (iii) of Rule 32 of Order 21, C.P.C. were attracted to that case and as such the decree for injunction passed in favour of the petitioners (decree‑holders) could be enforced by confining the respondents (judgment‑debtors) in the civil prison and by attachment of their property till such time they obeyed the order. He held that the respondents (judgment‑debtors) had disobeyed the order making themselves liable to the penal action. He, therefore, answered the issue in affirmative and passed the order directing that the respondents Nos. 1 to 4 (judgment‑debtors) should be put in civil prison and their property should remain attached till such time they obeyed the prohibitory decree.

8. During the course of discussion of the issue the learned executing Court considered various precedents of the pre‑partition days, including the authority known as Ham Chandra Naskar v. Narindar Nath Basoo A I R 1934 Cal. 402 relied upon by the learned counsel for the petitioners (decree‑holders), and basing its conclusion on this ruling, accepted the application of the petitioners (decree‑holders).

9. Aggrieved by this order the respondents (judgment‑debtors) went up in appeal before the District Judge, Campbellpur, who, placing reliance on Burhan -ud‑Din Ahmad and others v. Veda Brata Chakraborti and others PLD 1964 Dacca 661, came to the conclusion that when a prohibitory injunction had been violated, the remedy was not by putting the decree‑holder in prison but by adopting other measures as provided by law and as such the decree of the trial Court was not executable, nor the execution application was maintainable under Rule 32 of Order XXI, C.P.C. He further held that Rule did not apply to the violation of injunction decree as it applied only to the wilful failure of the judgment‑debtor to obey a decree and that too when he had been given an opportunity of obeying it. He opined that the only possible remedy for the petitioners (decree‑holders) was to move the Court concerned for taking contempt of Court proceedings against their opponents. Therefore, accepting their appeal, vide his order, dated 11‑7‑1974, dismissed the application of the petitioners (decree‑holders). Feeling dissatisfied with this order, they came up in revision to this Court.

10. It was argued on behalf of the petitioners (decree‑holders) that under clause (1) of Rule 32 of Order XXI, C.P.C. the respondents (judgment‑debtors) could be detained in civil prison and their property could also be attached for compelling them to obey the prohibitory decree issued in favour of their opponents but the learned District Judge taking an erroneous view of the matter, wrongly set aside a lawful order passed by the executing Court for detaining the respondents (judgment‑debtors) in the civil prison and for attaching their property till they obeyed the prohibitory injunction. He relied on the precedent quoted by the learned counsel for the petitioners (decree‑holders) before the executing Court.

11. On the contrary, the learned counsel for the respondents (judgment -debtors) was of the view that his clients had taken possession of the disputed land pursuant to a compromise effected with their opponents after the passing of decree and as such they did not violate the prohibitory injunction issued against them but if at all they violated it, no remedy was available to the petitioners (decree‑holders) under any provision of Rule 32 of Order XXI, C.P.C. In support of this contention, besides placing reliance on some old. precedents, he referred to the authority known as Burhanuddin Ahmed and others v. Veda Brata Chakraborti and others P L D 1964 Dacca 061 quoted by the learned, District Judge in the impugned order. He also cited Saleh Ahmad Choudhry and others v. Kabir Ahmad and another P L D 1900 Dacca 1022 and a recent authority of Lahore High Court reported as Nawab Din etc. v. Khurshid Ahmad etc. 1980 CLC 962.

12. In Burhanuddin Ahmed and others v. Veda Brata Chakraborti and others P L D 1964 Dacca 661 it was held that when a prohibitory injunction or order was violated, it became inexecutable and no execution application was maintainable for any of the remedies provided in Rule 32 of Order XXI, C.P.C. In Saleh Ahmad Choudhry and others v. Kabir Ahmad and another P L D 1960 Dacca 1022 the ratio was that clause (5) of Rule 32 ibid did not apply to a prohibitory injunction. In Nawab Din etc. v. Khurshid Ahmad etc. 1980 C L C 962 the dictum laid down was that if a decree of prohibitory injunction was violated, the provisions of clause (1) of Rule 32 of Order XXI, C.P.C, became inapplicable and clause (5) of Rule 32 ibid applied only to mandatory decrees and not to the prohibitory ones.

13. It appears that the authority of the Supreme Court on the subject reported as Muhammad Hussain etc. v. Muhammad Aslam 1988 S C M R 151 was neither brought to the notice of the learned Judge of Lahore High Court who delivered the judgment in Nawab Din's case, nor it has been noticed by the learned counsel representing the parties before me. In Muhammad Hussain's case with reference to Burhanuddin Ahmad and. others v. Veda Brata Chakraborti and others P L D 1964 Dacca 661 it was argued that under clause (1) of Rule 32 of Order XXI, C.P.C. the decree‑holder was not entitled to any specific relief in the event of the breach of prohibitory order and the learned Judges of the Supreme Court on this contention were pleased to observe that:‑‑

"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 XXI of the Code. In this connection reference may be made to the pronouncement in Angad and others v. Madhe Ram and others A I R 1938 All. 416 and Hem Chandra Naskar and another v. Narendra Nath Bose and others A I R 1934 Cal. 402, while Order XXI, Rule 32, clauses (1), (2) and (3) apply to both clauses of injunctions and; enable the decree‑holder to put the judgment‑debtor into civil prison and to attach the judgment‑debtor's property and by these means to compel him to obey the decree, clause (5) has no application to the case of a simple prohibitory injunction:"

14. These observations clearly disapproved the view taken in Burhanuddin Ahmad and others v. Veda Brata Chakraborti and others P L D 1964 Dacca 661 that for the violation of prohibitory injunction the decree‑holder had no remedy under clause (1) of Rule 32 of Order XXI, C.P.C. These observations obviously disapprove the view taken in the Lahore ruling (1980 C L C 962) that clause (1) of Rule 32 ibid could not be invoked in any case of violation of prohibitory injunction. This ruling which, in turn, was mainly based on the Dacca authority P L D 1964 Dacca 661, had virtually left the holder of a decree for prohibitory injunction with no remedy to enforce his decree. It was an extreme view, almost rendering the beneficial provisions of clauses (1), (2) and (3) of Rule 32 of Order XXI, C.P.C. ineffective and meaningless. This could never be the intention of the law‑makers. Fortunately, with the timely intervention of the Hon'ble Supreme Court the situation was saved and the decrees of prohibitory injunctions, which constitute a sizable percentage in the civil litigation, can now be enforced through the executing Courts by invoking the coercive provisions of law contained in Order XXI, Rule 32, clauses (1), (2) and (3) of the Code of Civil Procedure. This being so, Dacca authority known as Burhan‑ud‑Din Ahmad and others v. Veda Brata Chakraborti and others PLD 1964 Dacca 661, which was specifically disapproved by the Supreme Court to the extent of the implication of clause (1) of Rule 32 supra; and the Lahore ruling reported as Nawab Din etc. v. Khurshid Ahmad etc. 1980 CLC 962, which also embodies the same view, both incorporate a rule contrary to the .one laid down by the Supreme Court in Muhammad Hussain etc. v. Muhammad Aslam 1988 SCMR 151 to the extent of clause (1), Rule 32, Order XXI, C.P.C., and, with respect, it is not possible to follow them. I, therefore, hold that the decree, dated 17‑4‑1969, passed by the Administrative Civil Judge, Campbellpur (now Attock) in favour of the petitioners (decree- holders) could be enforced against the respondents (judgment‑debtors) by confining them in the civil prison and attaching their property.

15. Consequently the revision petition is accepted, the impugned order, dated 11‑7‑1974, passed by the learned District Judge is set aside, and the order, dated 5-11-1973 of the Administrative Civil Judge is restored. He shall execute his order promptly and effectively .

16. Due to the involvement of difficult question of law, parties are left to bear their own costs throughout.

M.B.A./M‑M89/L Petition accepted.