SRI D VENKATAIAH v. SMT HOORNAZ BANU

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3.3 Operative portion of the said order reads as under:

ORDER

'' IA.No.1 filed by the plaintiff under Order XXXIX Rule 1 and 2 of Civil Procedure Code is hereby partly allowed.

I hereby direct both the parties to maintain status-quo pertaining to suit schedule property till the disposal of the suit. ''

4. Later on the plaintiff being the master of the suit, withdrew the suit and sold the property in favour of third party.

5. Being aggrieved by the violation of the interim order and withdrawal of the suit, defendant in the said suit filed an execution petition which was numbered as Execution Case No. 2612/12 for the relief of violation of the status quo order and to punish the plaintiff.

6. In the meantime, defendant had also filed an application under Order XXXIX Rule 2A CPC, which was registered as Miscellaneous Case No.782/2012.

7. On contest said Miscellaneous case came to be dismissed. Further, defendant filed Miscellaneous First Appeal

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in M.F.A.No.7834/2016 against the said order which also came to be dismissal by this Court.

8. However defendant pursued with the execution case and the same was objected by the plaintiff.

9. Learned Trial Judge heard on the maintainability of the execution petition and by impugned order dated 01.09.2016 dismissed the execution petition as maintainable.

10. Being aggrieved by the same, present revision petition is filed on following and amongst other grounds.

11. Sri. Rajeshwara P.N, learned counsel for petitioner reiterating the grounds urged in the revision petition, vehemently contented that learned Trial Judge missed the notice of the provision under the Code of Civil Procedure called out in Section 36 of the CPC, whereunder even interim order can be executed by filing an execution petition.

12. In support of his arguments, he has placed on record following judgments:

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1. Sheela Jerald and others Vs. Pushpadasan

reported in 2018 (4) KHC 402

2. Bhimashenrao Vs. Ambarao reported in ILR 1998

KAR 4236

13. In the case of Sheela Jerald (Supra), the Hon'ble Apex Court while considering the question of application of Section 36, in paragraph Nos.3 to 6 has held as under:

''2. The High Court has refused to entertain an execution petition filed by the Appellants for enforcing the order of interim injunction granted to them restraining the purchaser from disturbing the peaceful possession of the premises and further directing him to vacate the premises in question.

3. The sole ground on which the High Court has refused to permit execution of the order is that the order sought to be enforced by execution is an interim order. This finding of the High Court is obviously untenable in view of Section 36, Code of Civil Procedure which 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.)

4. In M.V.S. Manikyala Rao v. M. Narasimhaswami and Ors. MANU/SC/0363/1965: 1966 KHC 453 AIR 1966 SC 470: 1966 (1) SCR 628: 1966 (1) MLJ (SC) 29 thi Court rejected the contention that Order XXI Rule 35(2) did not apply to the case in hand because the order in question was only an order for delivery of joint possession and not a decree. The Court observed that "this contention cannot be accepted because Under Section 36 of the Code the provisions relating to the execution of decrees are applicable to execution of orders." We find that there is no

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material difference between the order that fell for consideration in Manikayala Rao's case (supra) and an order such as an order granting an interim injunction.

5. Learned Counsel for the Respondent submitted that an Interim order cannot be executed under the provisions of the Code of Civil Procedure because Order 39 Rule 2(a) provides for consequence of disobedience of an injunction. It is not possible to hold that a provision which provides for a consequence of disobedience of an injunction has no relevance to whether an order passed under the Code of Civil Procedure validly by the competent Court can be executed or not.

6. Indeed an order passed validly by a competent Court must be capable of execution if it has to have any meaning for the parties in litigation. Incidentally, we are informed that the order sought to be executed by the Appellants was challenged and had been upheld by the High Court itself.''

14. Further, in the case of Bhimashenrao (Supra), learned Single Judge of this Court while dealing with the scope of Section 36, in paragraph Nos.2 and 3 has held as under:

'' 2. Section 36 clearly indicates that even an interim order can be executed in the same way as a decree. On the basis of that the Execution Petition was held as maintainable. Aggrieved by that the petitioner preferred the C.R.P.

3. It was submitted by the learned Counsel for the respondent that a well considered order has been passed by the Executing Court that when a person disobeys the interim order during the pendency of the suit, it is always open to either move the Court for contempt or to execute the interim order passed by the Court.

In that view of the matter, no interference is called for. The C.R.P. is dismissed. No order as to costs.''

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15. Based on the same, learned counsel for the petitioner seeks the setting aside of the impugned order and direct the Executing Court to proceed with the execution case in accordance with law.

16. On careful perusal of the material on record, it is crystal clear that the suit is one for bare injunction. It is to be noted that the interim order did not grant temporary injunction for the benefit of the plaintiff. Pertinently, defendant did not get an order by filing an application nor suppressed the order of status-quo. Therefore the interim order of status quo passed in favour of the plaintiff cannot be taken benefit of by the defendant to file the execution petition.

17. No doubt under Section 36 of CPC, an interim order can be executed. But the party who obtained the interim order is not the defendant, it is the plaintiff. No doubt defendant was also required to maintain status quo, so also the plaintiff.

18. If there is a violation of the interim order on behalf of the plaintiff in selling the property to third party and withdrawing the suit, the remedy for the defendant was elsewhere and such a remedy was pursued by the defendant by

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filing a petition under Order XXXIX Rule 2A CPC which ended before this Court in the Miscellaneous First Appeal No.7834/2016.

19. Under such circumstances, the order of the rejection of the Execution Petition as not maintainable is just and proper.

20. There cannot be any dispute as to the principles of law enunciated in the judgment of the Hon'ble Apex Court in

Sheela Jerald (Supra) and Bhimashenrao Vs. Ambarao (Supra), but on factual aspects, in view of the foregoing discussions, this Court does not find that the principles of law enunciated in those decisions would advance the case of the petitioner to any extent.

21. Hence, following the order:

ORDER

Revision petition is dismissed.

Sd/-

(V SRISHANANDA)

JUDGE

RL

List No.: 1 Sl No.: 4