Arun Bhansali, J.:— This writ petition has been filed by the petitioner aggrieved against the order dated 18.04.2015 passed by the Executing Court whereby the objections filed by the petitioner have been dismissed.
2. The respondent filed a suit for permanent and mandatory injunction. Alongwith the suit, an application under Order XXXIX, Rule 1 and 2 CPC was also filed. The application under Order XXXIX Rule 1 and 2 CPC was decided by the trial court on 28.06.2011 and mandatory injunction regarding the use of way was granted and it was directed that the lock on the iron gate be opened by the petitioner.
3. Against the order passed by the trial court, the petitioner filed an appeal under Order XLIII, Rule 1(r) CPC, which was rejected by the appellate court and writ petition filed by the petitioner was also rejected by this Court.
4. Thereafter, for implementing the mandatory injunction granted by the trial court, the respondent filed application for execution of the order. In the execution, the petitioner filed application raising objections to the said application inter alia on the ground that the proceedings which could be taken for non-compliance would only be under Order XXXIX, Rule 2A CPC and not by way of execution and therefore, the execution proceedings were liable to be dismissed.
5. The Executing Court by its order dated 18.04.2015 came to be conclusion that in view of provisions of Section 36 and 141 CPC, the execution application was maintainable and rejected the objections raised by the petitioner.
6. Learned counsel for the petitioner reiterated the submissions and contended that in view of the fact that petitioner's application under Order XXXIX, Rule 4 CPC was pending at the time of filing of the application, the Executing Court could not have proceeded further in the matter rather the application itself could not have been filed. However, it is informed that the application under Order XXXIX, Rule 4 CPC has also been dismissed by the trial court. It is further submitted that provisions of Section 36 and 141 CPC cannot result in arming the court with executing an interim order and therefore, the order impugned deserves to be quashed and set aside.
7. I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record.
8. Provision of Section 36 and 141 CPC reads as under:-
“36. Application to orders- The provisions of this Code relating to the execution of decrees (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).
141. Miscellaneous proceedings- The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
[Explanation-In this section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.]
9. A bare perusal of the provisions of Section 36 reveals that the provision of the CPC relating to execution of the decrees have been made applicable to the execution of orders and Section 141 provides that procedure provided in the code with regard to suit is to be followed as far as it can be made applicable in all proceedings, in any court of civil jurisdiction. A combined reading of both the provisions clearly reveals that the procedure as prescribed for execution of decree is also applicable for execution of orders passed by the court during the pendency of the suit and, therefore, the objection raised by the petitioner in this regard has no substance.
10. In view thereof, there is no substance in this writ petition. The same is, therefore, dismissed.
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