JAI DAYAL AND ORS. versus KRISHAN LAL GARG AND ANR.

Citation: [1996] SUPP. 8 S.C.R. 538 · Decided: 06-11-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.B. PATTANAIK · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
JAi DAY AL AND ORS. 
v. 
KRISHAN LAL GARG AND ANR. 
NOVEMBER 6, I 996 
B 
[K. RAMASWAMY AND G.B PATTANAIK, JJ.] 
Code of Civil Procedure, 1908/Easement Act, 1882 : 
S.49, Order 21, R.32/s.22-Execution of decree-Plaintiff-
C Appellant's suit for perpetual injunction and mandatory injunction 
restraining defendant from blocking passage to appellant's house decreed-
Later, the judgment-debtor constructed a shop blocking the passage-Court 
issued orders of attachment of property and detention of judgment-debtor 
in case obstruction is not removed-High Court holding that matter to be 
adjudicated uls 22 of Easement Act-Held, since attachment was made for 
D enforcement of perpetual injunction, the decree is required to be complied 
with-Jn the circumstances, s. 22 of Easement Act cannot be resorted to--
If a judgment-debtor has suffered the "decree, no attempt to circumvent the 
perpetual injunction can be permitted-Non-compliance is a continuing 
disobedience entailing penal consequences_:A fresh suit is barred u/s 49, 
CPC. 
E 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2583 of 
I 980. 
From the Judgment and Order dated 9.4.1980 of the Allahabad High 
F Court in Execution Second Appeal No. 789 of 1969. 
G 
·Rani Chhabra, (N.P.) for the Appellant No. 2-5. D. Goburdhan for 
the Appellant No. I. 
R.K. Maheshewari for the Respondent. 
The following Order of the Court was delivered : 
This appeal by special leave arises from the judgment of the learned 
single Judge of the Allahabad High Court, made on 9.4.1980 in Execution 
H Second Appeal No. 789 of 1969. 
538 
JAi DAY AL v. KL. GARG 
539 
The admitted facts are that the appellant had filed Suit No. 1023/61 A 
against the respondent for perpetual injunction and also for mandatory 
injunction restraining him from blocking passage of 5 ft. between the 
house of the appellant and that of respondents and for removal of the 
obstruction. It was decreed by the Trial Court on March 30, 1964 which 
was confirmed by the appellate Court on December 10, 1964. Thus, the 
decree of mandatory injunction to remove the obstruction and perpetual B 
injunction restraining the respondent from blocking the passage of the 
appellants through the "QOADEMLP area" of the land shown in the decree 
of the trial Court. When the appellants had filed an application for execution 
under Order 21, Rule 32, CPC in Execution Case No. 2903/65, the 
respondent had removed the obstruction and consequently, the execution 
case was struck out on February 25, 1966 on the finding that the passage C 
had been cleared and obstruction was removed. That was also upheld by 
the appellate Court by dismissing CA No. 65166 on March 6, 1967. 
It is now an admitted position that subsequently a shop was 
constructed which is an obstruction to the passage in question and it had 
completely blocked the passage. The appellant, therefore, filed again an D 
execution application under Order XX!, Rule 32 in E.C.No. 42/1967. The 
executing Court had directed, over-ruling the objections of the respondents, 
to remove the obstruction completely and issued injunction not to. disobey 
the mandatory injunction. It was issued by way of attachment of the property 
and detention of the respondents in civil prison if only the obstruction is 
not removed. On appeal, the Additional District Judge by his judgment E 
dated March 10, 1969 confirmed the same. In the execution second appeal, 
the learned Single Judge reversed the decree and remitted the matter on 
the finding that under Section 22 of the Easement's Act, it is required to 
be seen whether the obstruction has caused enjoyment of easementary 
right. Since. that was not done, the courts below have committed error of 
law in directing removal of the obstruction and also the attachment of the F 
properties and direction to keep the respondents in civil prison. 
The question is: whether the view taken by the High Court is correct 
in law? One of the defences taken by the respondent was that he had sold 
the property to third parties who had constructed the shop and thus it is G 
not he who caused obstruction. That evidence was not accepted and it was 
found that the respondent had constructed the shop in the disputed area. 
Thereafter, it is recorded as a fact as under: 
"The next question for decision in this appeal is whether the 
disputed construction has blocked the passage. In support of H 
A 
B 
c 
D 
540 
SUPREME COURT REPORTS [l 996] SUPP. 8 S.C.R. 
his contention on thi

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