WHETHER EXECUTION PETITION OF INTERIM ORDERIS MAINTAINABLE?

 

WHETHER Execution PETITION of INTERIM ORDERIS MAINTAINABLE?

 

The perception about civil cases that such cases are often delayed, sticks in good measure. Though, the amendment in Code of Civil Procedure in the year 2002 has, though, envisaged smoothening of the process and stipulations are provided for, with a view to seek expedition, still, delay occurs. There are provisions of Summary suits under Order XXXVII of CPC and also judgments on the premise of order XII Rule 6 of CPC for judgment on admissions could be sought by a party to the lis and even suo moto such a judgment and decree could be passed. Conversely, the provisions of Order VII Rule 11 CPC ordains rejection of frivolous suits or in case the suit is barred by law or otherwise, does not disclose cause of action. After tardy process, when a plaintiff succeeds and hopes to reap the fruit of his endeavour, the latter is, still to prefer execution petition to seek enforcement of judgment and decree. The disgruntled party or parties, however, has the mechanism available to defeat the decree or try to delay the same. In this process, time is consumed and the victim is the successful party. If the interim order is allowed to remain unexecutable, the same may be akin to double whammy to aggrieved party. That is not the object of law, though.

ANALYSIS OF PROVISIONS AND JUDICIAL PRECEDENTS:

In this backdrop, what is of significance is that, whether the interim order passed in the course of proceedings of the suit shall be executable.

The basic perception is that execution of the interim order and on interlocutory application cannot be initiated, independently, till the passing of the final decree. It is also felt that execution of interim order may itself render a suit infructuous and therefore, such order according to the perception could only be passed, after conclusion of trial.  Still further, execution of interim order is nothing but a preliminary decree and it cannot be severable from the final decree and therefore cannot be executed independently. The court is required to ascertain under Section 47 of CPC that if the order is to constitute a decree. The Section 47 (1) of Code of Civil Procedure is reproduced herein as under:

47. Question to be determined by the Court executing a decree-(1)- “All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit”.

The aforesaid provision is categorical and it is held by hon’ble Gauhati High Court that the court has got power and jurisdiction in this regard (Ref: Mohd Serajuddin Vs Mohd Abdul Khalique AIR 2004 Gau 126:  (2005) 1 GLR 299

Before proceeding further, Section 36 of Code of Civil Procedure may be relevant for perusal:

 

         36. Application to orders:- “The provisions of the Code relating to the execution of a decree [including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order)]

 

Section 36 of CPC is quite clear and the same has to be read in conjunction with Order 21 with a view to seek execution of interim order. The section 36 clearly stipulates that the provision shall be deemed to be applicable on orders.

EXECUTION EVEN DURING PENDENCY OF APPLICATION UNDER ORDER XXXIX RULE 2 A of CPC

The Execution shall be maintainable even after preferring application under Order XXXIX Rule 2 A of Code of Civil procedure and even during pendency of it. In other words, breach of order / disobedience and contempt shall be independent of the execution.

The hon'ble Supreme Court Apex Court in Kanwar Singh Saini Vs High Court of Delhi 2012(4) SCC 307, has held in Para 26 that:

"An application under Order XXXIX Rule 2A CPC was maintainable in a case where there was a violation of interim injunction passed during the pendency of the suit."

In Para 17, it was held that:

"An application under Order XXXIX Rule 2A lies only where disobedience/breach of injunction granted or order complained of was one that is granted by the Court under Order XXXIX Rules 1 and 2 CPC, which is naturally to enure during the pendency of the suit. However, once a suit is decreed, the interim order, if any, merges into the final order and if the case is ultimately dismissed, the interim order stands nullified automatically."

Hon'ble High Court of Andhra Pradesh in B. Chandra Sekhar Reddy & Ors. vs. K. Naga Raju Yadav & Anr. 2013 (1) ALT 532 has held in Para 25 that:

"When the word 'Decree' is used in Order XXI Rule 32 is only referable to a Decree passed in a suit for permanent injunction after conducting necessary trial, an Order passed in an interlocutory application under Order XXXIX Rules 1 & 2 CPC cannot be equated with that word "Decree" for the purpose of taking recourse under the former provision when there was violation of interlocutory order."

Interim order is executable:

As discussed hereinabove, as per Provision of Section 36 CPC as elucidated above, the interim order passed under Order 39 Rules 1 & 2 CPC is executable order. The application to that effect i.e Execution Petition may be filed and that is maintainable, if the directions given to the defendant, attains finality and no stay is operative”. 

The objections, therefore to execution shall be untenable at this stage and are liable to be rejected as is held in  Kavita Chaudhri vs. Eveneet Singh and Anr. 2012(130)DRJ 83.

The Andhra Pradesh High Court in Yarlagunta Bhasker Rao v. Bommaji Danam 2014(1) ALD 309, has held that:

".... a party, who obtained temporary injunction orders, and is complaining of violation of such orders, may file not only an execution petition under Order XXI Rule 32 CPC or an application under Order XXXIX Rule 2A of CPC seeking attachment and / or arrest of the violator for Contempt of Court....."

Similarly, the Division Bench of Bombay High Court in Satyapal v. Sanjay and Ors. (W.P. No. 735 of 2010) as decided on 08.02.2010 and reported as  MANU/MH/0131/2010 held in Pare 15 that :

" In substance, an order under Order 39 Rules 1 & 2 and Order 39 Rule 2A operates into two different eventualities only because such litigant has filed an application under Order 39 Rule 2A CPC for alleged breach of injunction, his prayer for execution of the temporary injunction order within the parameters of Section 36 read with Order 21 of the Code, cannot be refused."

In Kavita Chaudhri vs. Eveneet Singh and Anr. . 2012(130)DRJ 83,

The daughter-in-law was directed by an interim mandatory injunction, to vacate the 'shared house' and to shift to the alternative suitable accommodation. As regards the issue of execution and legality of the said order, the Hon'ble High Court was pleased to hold in Para 14 as under:

"14. Coming back to the meat of the case at hand wherein this Court is to examine as to whether the said two orders dated 20.12.2010 and 29.4.2011 passed by the learned Single Judge are in the nature of decree and can be enforced against the judgment debtor or not. Section 36 of the Code of Civil Procedure, 1908 makes it abundantly clear that the provisions of Order XXI are equally applicable with all force to the execution of an order. Section 2(14) of the Code defines an 'order' to be the formal expression of any order of a civil Court which is not a decree. A combined reading of Section 36 with Section 2 (14)  would make it clear that unless in an order there is a formal expression of decision of a civil Court, the same will not become executable. Under Order XXI Rule 32 any decree passed by the civil Court for specific performance for restitution of conjugal rights or for injunction can be enforced in the manner provided therein. Section 36 was enacted on the statute book to clarify the provisions relating to the execution of a decree or order. The underlying principle of this provision is that every Court has inherent power to have its order carried out, as otherwise, the orders would be a mere farce. The word execution means enforcement of decrees or orders by process of Court so as to enable the decree holder to reap fruits of the judgment or orders passed by the Court in his favour therefore, it cannot be said that the word execution is relevant only so far as the execution of the decree is concerned, vide order dated 20.12.2010 a detailed order was passed by this Court while disposing of the applications filed by the parties in the said two suits i.e CS (OS) No. 505/2010 and CS(OS) No. 1307/2010 and the order dated 29.4.2011 is in continuation of the said order dated 20.12.2010 being a clarification in nature. The Court in the said order has given detailed reasons after placing reliance on various judgments passed by the Hon'ble Apex Court and other High Courts and also referred to the relevant provisions of the Domestic Violence Act and therefore both the said orders clearly fall within the definition of Section 2(14) of the Code of Civil Procedure and therefore it cannot be said that they are not executable or enforceable in nature….."

It is therefore explicit that In view of the law laid down by the Hon'ble High Court of Delhi in the case of Kavita Chaudhri vs. Eveneet Singh and Anr. (Supra), the execution of ad-interim mandatory injunction passed under Order 39 Rules 1 & 2 CPC is maintainable. Further, the Hon'ble Bombay High Court in case of Satyapal v. Sanjay and Ors. (Supra) has also held, the execution of an order of ad-interim injunction passed under Order 39 Rules 1 & 2 CPC is maintainable along with contempt proceedings under Order 39 Rule 2A CPC.

Moreover, no stay of execution may possibly be passed under Order 21 Rule 29 CPC, as the said provision is not applicable to such execution, where, the status of the applicant/plaintiff is not of a decree holder, as in case of execution of interim order, merely execution of an order could be sought and Section 36 of Code of Civil Procedure, and it shall not aid the objection.

REMARK

The clear inference that emerges from the aforesaid discussion is that notwithstanding of the filing of the application under Order 39 Rule 2A of Code of Civil Procedure that deals with contempt/willful disobedience of order, the Execution Petition, shall nevertheless, be maintainable to execute the order passed under Order XXXIX Rule 1 & 2 of Code of Civil Procedure, if the order has attained finality. No doubt, when a lis is finally disposed off, the interim order merges into final order, but the pendency of the suit shall be no bar to seek execution of interim order. The fact that the interim order was breached and during pendency of application seeking punitive measures to breach or such disobedience shall not bar the maintainability of execution petition. The hon’ble Supreme Court has cleared the position in this regard. Needless to say, if the interim order is held to be not executable, then, the orders passed by the court shall be akin to paper order and a litigant should be allowed to reap the fruit of success, whether interim or final and that is the judicial dicta.

 

                                  Anil K Khaware

Founder & Sr Associate

societylawandjustice.com

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