Rajasthan High Court – Jaipur
Bodulal S/O Ramdev vs Hanuman on 18 February, 2026
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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 10242/2025
1 Bodulal S/o Ramdev, (Since Deceased Through L.r.)
1.1 Prakashchand S/o Iate Bodulal, Aged About 44 Years, R/o
Sati Chauraha, Srinagar, Tehsil Nasirabad, District Ajmer.
----Petitioners
Versus
1 Hanuman, S/o Bhawarlal
2 Pappudi, W/o Mangalchand
3 Geeta W/o Hanuman, All Resident Of Srinagar, Tehsil-
Nasirabad, District Ajmer.
----Respondents
For Petitioner(s) : Adv. Asad Sheikh
For Respondent(s) : Adv.Reashm Bhargava
HON'BLE MR. JUSTICE BIPIN GUPTA
Judgment / Order
Reportable
Date of hearing and conclusion of arguments 11.02.2026
Date on which the judgment was reserved 11.02.2026
Whether the full judgment or only the operative Full Judgment
part is pronounced
Date of pronouncement 18.02.2026
1. The present writ petition has been filed assailing the order
dated 22.05.2025, passed by the learned Senior Civil Judge,
Nasirabad, District Ajmer, in Civil Execution Petition No. 12/2019,
whereby the application filed by the judgment-debtors-
respondents under Section 47 CPC, raising objections to the
maintainability of the execution proceedings, came to be allowed,
and as a consequence thereof, the execution petition filed by the
decree-holder-petitioner was dismissed.
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2. The controversy, in a narrow compass, arises out of a suit for
permanent injunction instituted by deceased plaintiff Bodulal,
predecessor-in-interest of the present petitioner. The suit
pertained to ancestral property comprised of Khasra No. 3217,
admeasuring 14 Biswa and 10 Biswanshi, which, as per the
revenue record, stood recorded in the names of the plaintiff's
father late Ramdev and proforma defendant's father late Shravan.
It was averred in the plaint that the plaintiff had been in continued
possession of the said land and was using the same, inter alia, for
storing animal fodder.
2.1 On 12.01.2001, the defendants allegedly entered upon the
disputed land and started construction thereon, coupled with
threats of forcible dispossession and alteration of the nature of the
property. In these circumstances, the plaintiff instituted a suit for
permanent injunction on 17.01.2001 seeking protection of his
possession.
2.2 In the suit proceedings, the defendants in their written
statement controverted the claim and asserted that the property
in question had been partitioned between late Ramdev and late
Shravan long ago. It was further their case that the share of late
Shravan had been purchased by one Shri Bhawarlal on 25.08.1934
and that the defendants, being successors-in-interest of the said
Bhawarlal, had been in continuous possession of the disputed land
for more than seven decades.
2.3 Upon appreciation of the pleadings and evidence available on
record, the learned Trial Court, vide judgment and decree dated
29.10.2015, decreed the suit for permanent injunction. The Court
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recorded a categorical finding that the plaintiff was in possession
of the property in dispute. Consequently, a decree was drawn
restraining defendant Nos. 1, 3 and 4 from creating any
obstruction in the use and enjoyment of the suit property and
from raising any construction or encroachment thereon.
3. Aggrieved thereby, defendant-respondent No. 2 Pappudi,
preferred Civil Appeal No. 37/2018 (26/2015), before the learned
District and Sessions Judge, Nasirabad, Ajmer. The learned
Appellate Court, vide judgment dated 21.12.2024, dismissed the
appeal and affirmed the judgment and decree dated 29.10.2015.
It was observed that the appellants had failed to substantiate their
plea of continuous possession for 60-70 years. The Appellate
Court further noted that no objection had been raised on the
Commissioner's report, which formed part of the record of the suit
proceedings.
4. Thereafter, the defendants acted in defiance of the decree
and attempted to encroach upon and raise construction over the
disputed property, thereby disturbing plaintiff's peaceful
possession. The plaintiff, aggrieved by such actions of the
defendants, filed an execution petition before the learned Trial
Court alleging that the defendants-respondents had, in violation of
the decree, taken unlawful possession of the property in dispute
by employing force and that removal of encroachment and
restoration of possession was warranted.
5. In the execution proceedings, the judgment-debtors filed
objections under Section 47 CPC contending, inter alia, that the
decree under execution was one of simpliciter injunction and did
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not contain any direction for delivery or restoration of possession
to the decree-holder.
6. In reply thereto, the decree-holder-petitioner asserted that
the decree dated 29.10.2015, clearly restrained the defendants
from interfering with his peaceful possession and from raising
construction over the disputed land. It was contended that the
execution petition was necessitated only on account of the
unlawful entry and obstruction caused by the defendants in
violation of the decree.
7 The learned Executing Court, vide the impugned order dated
22.05.2025, upheld the objections preferred by the judgment-
debtors and dismissed the execution petition. The Court observed
that the decree-holder had failed to establish the specific date or
manner in which he was allegedly dispossessed after passing of
the decree. It was further observed that no cogent material, such
as photographs or other documentary evidence, had been placed
on record to demonstrate that construction had been raised by the
judgment-debtors subsequent to the judgment and decree dated
29.10.2015.
8. Aggrieved by the said order dated 22.05.2025, the plaintiff-
decree holder has preferred the present writ petition.
9. Learned counsel for the petitioner submits that the impugned
order is ex facie illegal and arbitrary, as the same has been passed
by the learned Trial Court in a cursory manner without
appreciating the facts and circumstances of the case. Moreover,
both the learned Courts below have concurrently arrived at a
finding that the defendants had failed to prove the factum of being
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in continued possession of the property in dispute for 60-70 years
and have ruled in favour of the petitioner. Thus on the date of suit
as well as on the date of decree, there was no possession of the
defendant judgment debtor.
9.1. Learned counsel for the petitioner further submitted that he
had been in uninterrupted and peaceful possession of the suit
property and that no encroachment existed prior to the passing of
the decree in 2015. According to the petitioner, it was only
thereafter that the respondents unlawfully entered upon the
property. It was further argued that no such objection was filed by
the respondent on which the application under section 47 CPC has
been allowed.
9.2 It was further argued that the objection of the respondent
was only to the effect that since there is no decree for possession
therefore the possession warrants cannot be issued. Hence,
learned counsel for the petitioner submitted that the impugned
order dated 22.05.2025 is liable to be quashed and set aside.
10. Per contra, learned counsel for the respondents contends
that the decree sought to be executed is one for permanent
injunction simpliciter and does not contain any direction for
delivery of possession. It is argued that the Executing Court
cannot travel beyond the terms of the decree or enlarge its scope.
In the absence of a decree for possession, no such relief could
have been granted in execution.
10.1 Learned counsel for the respondents further submitted that
the petitioner has failed to disclose the specific date or
circumstances of the alleged dispossession, before the learned
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Executing Court. Pertinently, the petitioner has not placed on
record any material to establish that any encroachment or
construction was raised after 29.10.2015. It is thus contended
that under the garb of executing a decree for injunction, the
petitioner seeks to obtain possession of the property, which is
impermissible in law. Hence, the impugned order dated
22.05.2025 has been rightly passed by the learned Trial Court and
thus, prayed that the present writ petition be dismissed.
10.2 Learned counsel also argued and placed reliance on the
evidence of the plaintiff to establish the fact that the defendant
was even in possession of the disputed property even prior to the
decree dated 29.10.2015.
10.3 Learned counsel for respondent also argued that in the suit
proceedings, the commissioner was appointed without notice to
defendant and referred the report to contend that the decree was
passed wrongly passed relying on the commissioner report.
10.4 Learned counsel for the respondent further argued that if the
respondents would have encroached after the decree in 2015,
then certainly this fact would have been brought to the notice of
the court during pending appeal which was decided on
21.12.2024. Hence learned counsel for respondent prayed that the
writ petition filed by the petitioner may be rejected.
10.5 Learned counsel for the respondents relied upon the
following judgments to buttress his arguments :
(i) Nari Chinnabba Chetty vs E, Chengalroya
Chetty & Ors.; AIR (37) 1950 Madras 237.
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(ii) G. Anandam & Ors. vs The Warangal
Municipal Corporation. Rep by its
Commissioner, Warangal; 1997 (1) ALT 434.
(iii) Angad and Ors. vs Madho Ram and Ors.;
AIR 1938 Allahabad 416.
(iv) Smt. Indu Tewari vs Ram Bahadur
Chaudhari and Ors.; AIR 1981 Allahabad 309.
(v) Y. Lakshmaiah vs Esso Eastern Inc and
Ors.; AIR 1974 Andhra Pradesh 32.
(v) Periyasamy Thevan and Ors. vs Karuthiah
Thevan and Anr.; AIR 1918 Madras 1293.
(vi) K. Govinda Chettiar and Ors. vs A.N.
Muniswami Chettiar and Ors.; AIR 1937
Madras 315.
(vii) Narinder Singh vs Maya Devi & Ors.;
1999 (1) CLJ 624 (Punjab & Haryana High Court).
(viii) Sarup Singh vs Daryodhan Singh; AIR
1972 Delhi 142.
(ix) Sunder Dass vs Mulakh Raj and Ors.; AIR
1981 Delhi 85.
(x) Radha Rajak alias Radhika Raja and Ors.
vs Balmiki Devi and Ors.; AIR 1998 Patna 175.
(xi) R.S.R.T.C. vs Ram Babu Gupta; 1997 (3)
WLC 543.
(x) Kesava Kurup Kunjurama Kurup vs
Narayan Kurup Parameswara; AIR 1967
Kerala 193.
(xi) Murari Lal s/o Ram Saran Dass vs Nawal
Kishore and Ors.; AIR 1961 Punjab 547.
(Xii) Rameshwar Dass Gupta vs State of U.P.
and another; (1996) 5 SCC 728;
11. Heard learned counsel for the parties and perused the
material available on record.
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12. It is a settled principle of law that an Executing Court cannot
go behind the decree. It is confined to execute the decree as it
stands and cannot travel beyond its scope. However, at the same
time, it bears a solemn duty to ensure that the decree is enforced
in its true spirit and substance so that the party who has been
successful in litigation is not deprived of the relief that had been
granted to him lawfully. The Trial Court cannot be rendered
handicapped while enforcing the decree of permanent injunction
merely on the fact that the judgment-debtors chooses to flout the
same after its issuance. Thus, the learned Executing Court has the
bounden duty to take all lawful measures to secure effective and
meaningful compliance, so that the decree-holder fully reaps the
benefit of the adjudication.
13. Order XXI Rule 32 CPC provides the mechanism for
enforcement of decrees for injunction. Sub-rule (1) empowers the
Court to enforce such decree by detention in civil prison or by
attachment of property in case of disobedience. Significantly, sub-
rule (5) thereof confers wider and effective powers upon the
learned Executing Court. The said provision authorises the Court,
in the event of continued disobedience, to direct that the act
required to be done may be carried out, so far as practicable, by
the decree-holder or any other person appointed by the Court, at
the cost of the judgment-debtor.
14. Thus, sub-rule (5) of Rule 32 clarifies that where a decree of
prohibitory injunction is rendered nugatory by wilful and unlawful
act of judgment debtor, the Court may adopt all the measures that
are essential to give effect to the decree for injunction. In
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appropriate circumstances, thus it is also correct to restore the
possession so as to avoid the frustration of the judgment and
decree already passed.
15. The relevant portion of Order XXI Rule 32 CPC reads as
under:
32. Decree for specific performance for
restitution of conjugal rights, or for an
injunction.
(1) Where the party against whom a decree for
the specific performance 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 be enforced 2[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 a contract
or for an injunction] by his detention in the civil
prison, or by the attachment of his property, or
by both.
(2) Where the party against whom a decree for
specific performance or for an injunction has been
passed is a corporation, the decree may be
enforced by the attachment of the property of the
corporation or, with the leave of the Court, by the
detention in the civil prison of the directors or
other principal officers thereof, or by both
attachment and detention.
(3) Where any attachment under sub-rule (1) or
sub-rule (2) has remained in force for 3 [six
months,] if the judgment-debtor has not obeyed
the decree and the decree-holder has applied to
have the attached property sold, such property
may be sold; and out of the proceeds the Court
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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 bound to pay, or where, at the end of
3[six months] 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 for the 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 processes 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 as the Court may direct and may be
recovered as if they were included in the decree.
Explanation.--For the removal of doubts, it is
hereby declared that the expression "the act
required to be done" covers prohibitory as
well as mandatory injunctions.
16. The Hon'ble Apex Court in the case of Meera Chauhan Vs.
Harsh Bishnoi and Ors.; (2007) 12 SCC 201, while interpreting
the inherent powers of the court has held that the Court can order
restoration of possession to the party wronged. The relevant
paragraph of the judgment is reproduced as under:
"18. At the same time, it is also well settled that
when parties violate order of injunction or stay
order or act in violation of the said order the Court
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can, by exercising its inherent power, put back the
parties in the same position as they stood prior to
issuance of the injunction order or give
appropriate direction to the police authority to
render aid to the aggrieved parties for the due and
proper implementation of the orders passed in the
suit and also order police protection for
implementation of such order. It is also well
settled that when in the event of utter violation of
the injunction order, the party forcibly
dispossesses the other, the Court can order
restoration of possession to the party wronged."
17. The scope of Order XXI Rule 32(5) CPC has also been clearly
elucidated by a Co-ordinate Bench of this Court, at Jodhpur, in the
case of Naurang v. LRs of Late Chunnilal; S.B. Civil Revision
Petition No. 145/2025 (decided on: 19.08.2025), wherein it has
been held that when a decree for injunction is violated by raising
construction or by interfering with possession, the learned
Executing Court is not powerless. It was observed that the Court,
to effectuate the decree and to uphold the majesty of law, can
direct removal of the construction or obstruction raised in violation
thereof and may even restore possession, if the judgment-debtor
has dispossessed the decree-holder in defiance of the decree. The
power under sub-rule (5) is enabling and remedial in nature,
intended to prevent frustration of judicial orders. The relevant
paragraph of Naurang (supra) reads as under:
"10. However, where a decree of prohibitory
injunction has been rendered nugatory by the
willful and unlawful act of the judgment-debtor
particularly dispossession of the decree-holder
from the decreetal property; the executing court
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is vested with the power, under Order XXI Rule
32(5) CPC, to direct measures necessary to
secure compliance, including restoration of
possession. To give full effect to an injunction
decree, the executing court may remove any
obstruction caused in violation thereof, so that the
successful litigant reaps the benefits of the
adjudication.
...
12. Order XXI Rule 32(5) CPC vests in the
executing court the necessary power to secure
effective compliance of such decrees. It clarifies
that where a decree of prohibitory injunction is
rendered nugatory by the wilful and unlawful act
of the judgment-debtor, particularly dispossession
of the decree-holder, the court may adopt all
measures essential to secure obedience, including
the restoration of possession. To give full effect to
an injunction decree, the executing court may also
remove any obstruction set up in breach thereof,
so that the successful litigant may truly reap the
benefit of adjudication. Mere penal consequences
under the contempt jurisdiction may not suffice;
in appropriate circumstances, restoration of
possession becomes the most efficacious mode of
enforcement. After protracted litigation, to require
the plaintiff to institute a fresh suit for recovery of
possession on account of the subsequent acts of
the defendants, which are calculated to frustrate
the judgment and decree already passed, would
be wholly unjust and improper.”
18. Further, the High Court of Madhya Pradesh, in the case of
Heeralal deceased through Lrs. Rajesh and Ors. vs
Omprakash and Ors.; Civil Revision No. 152 of 2023 (decided
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on 16.09.2025), the Court reaffirmed that while an executing
court cannot travel beyond the decree, it is duty-bound to ensure
its effective enforcement. The Court held that dismissal of the
execution proceedings merely on technical grounds defeats the
very purpose of a decree for permanent injunction.
19. The said position of law was also discussed by a Bench of
High Court of Allahabad in the case of State of U.P and Ors. vs
Kamla Negi and Ors.; 2024 (7) ADJ 22, observed that the Court
has to ensure the full satisfaction of the decree and the said power
has been very consciously given to the learned Trial Court by the
legislature in order to ensure that the decree is enforced in an
effective manner. Further, in case where there is a violation of
decree of prohibitory injunction, the Executing Court has
jurisdiction to restore the possession in favour of the judgment
debtor by issuing the requisite warrant. The relevant paragraph of
Kamla Negi (supra) reads as under:
“43. In my considered view, the legislature has
very consciously and rightly so in its wisdom
empowered the executing court to get the
performance of decree achieved, whatever
manner it is feasible and possible. The
intendment behind incorporation of sub-Rule (5)
and the explanation attached to it is that even in
the case of prohibitory or mandatory injunction,
the Court has to ensure full satisfaction of the
decree. In other words, the court has to ensure a
decree does not go to waste. The attachment of
the property, as has been argued by learned
Additional Advocate General, does not warrant
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[2026:RJ-JP:7606] (14 of 17) [CW-10242/2025]appears to me a highly misplaced argument. The
attachment of the property basically as
contemplated under sub-rule (3) and directing for
its sale by the court is intended only to ensure
decree of specific performance of contract. This
coercive measure, therefore, will ensure
performance of decree where a judgment debtor
does not perform as per the decree for specific
performance of contract. The legal position,
therefore, would be that in the matter of
mandatory/perpetual/prohibitory injunction, the
Court can exercise power to direct for delivery of
possession of the property by the judgment-
debtor to the decree holder if he is dispossessed
after the decree is passed in the suit.
…..
54. It is true that no court can be held to be
powerless to remain passive spectator of
violation of a decree even while execution case is
pending. It is to be seen always whether the
power was there and court failed to exercise that
power to ensure performance of decree or there
was no power and court could not have directed
for performance of execution of decree but for
section 151 C.PC. In the present case, the power
was available to the executing court under sub-
Rule (5) of Rule 32 of Order 21 C.P.C., but I do
not see from the recitals of the order impugned
passed by executing court on 25.08.2014 that
any such step was taken prior to passing the
order.”
20. In the case of Kapoor Singh vs Om Prakash; AIR 2009
P&H 188, a Division Bench of High Court of Punjab and Haryana
interpreted the provisions as contained under Order 21 Rule 32
CPC and held as under:
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which would prevent multiplicity of the
proceedings rather than the one which will
generate it. The decree holder is not required to
file another suit as he had already obtained a
decree in his favour by spending much time and
expense. Thus, the Executing Court has the
jurisdiction to pass an order on the application
under Order 21 Rule 32(5) CPC to restore the
possession of land in dispute to decree holder in
case the decree of permanent-injunction is
violated by the judgment debtor.”
21. In the present case, both the learned Trial Court and the
learned Appellate Court have concurrently recorded a categorical
finding that the plaintiff-decree-holder was in possession of the
suit property. The decree restrains the defendants from causing
obstruction or raising construction over the property in question.
If, subsequent to the decree, the judgment-debtors have entered
upon the land and raised construction in violation thereof, such
conduct squarely attracts the provisions of Order XXI Rule 32 CPC.
22. This Court further finds that a specific issue was framed,
which was Issue No. 3, to the effect that whether the defendant
no. 1 namely Hanuman was in possession of the disputed property
since 60-70 years and have the adverse possession. The burden
was on defendant but they failed to discharge the burden and the
issue was decided against the defendants.
23. This Court also finds that no appeal was preferred by
defendant Hanuman, but it was filed by only one defendant
namely Pappudi and the appeal was also dismissed. Therefore, the
finding of the learned Trial Court attained finality in 2015, itself
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against the defendant namely Hanuman and the appeal of other
defendants stood dismissed in 2024, therefore defendants were
not in possession of the disputed property on the date of decree.
24. The learned Executing Court, instead of examining whether
there was willful disobedience of the decree and whether remedial
measures under Order XXI Rule 32(5) CPC were warranted,
dismissed the execution petition on the ground that no specific
date of dispossession was disclosed and that photographic
evidence was not produced. It is pertinent to note that such an
approach defeats the very object of the execution proceedings and
renders the decree nugatory.
25. Once on the date of decree, the defendant has not been
found in possession and decree of permanent injunction has been
issued against them, then neither the executing court nor this
court can go behind the decree to hold that the respondent are in
possession prior to decree, therefore the argument raised by the
respondent counsel to see the evidence in the suit or that the
commissioner was appointed without notice cannot be considered
because if considered it will amount to attacking a decree in
execution proceedings and going behind the decree which is not
permissible.
26. The judgments as cited by the learned counsel for the
respondent do not derive any support as the same pertains to
prior to amendment of CPC where in explanation after order 21
rule 32(5) CPC was appended and effected from 1-7-2002.
27. Thus, after the amendment, the legal position stands
crystallized, it is clear that the power under Order XXI Rule 32(5)
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CPC is enabling, remedial, and intended to ensure effective
enforcement of decrees of injunction. The Executing Court, though
it cannot travel beyond the decree, is duty-bound to uphold its
sanctity and prevent its frustration by adopting all permissible
measures, including removal of constructions raised in violation
thereof and restoration of possession where dispossession has
occurred in defiance of the decree.
28. Accordingly, the present writ petition is allowed. The
impugned order dated 22.05.2025 passed by the learned Senior
Civil Judge, Nasirabad, District Ajmer, in Civil Execution Petition
No. 12/2019 is hereby quashed and set aside.
29. The matter is remanded to the learned Executing Court with
a direction to restore the execution petition to its original number
and to proceed in accordance with law.
30. The parties are directed to appear before the learned
Executing Court on 09.03.2026. The learned Executing Court shall
endeavour to decide the execution proceedings as expeditiously as
possible, preferably within a period of 6 months from date of
receipt of a certified copy of this order.
31. No order as to costs.
32. All pending applications stand disposed of.
(BIPIN GUPTA),J
Jubin/
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