[2026:RJ-JP:7606] 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 part is pronounced Full Judgment 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. [2026:RJ-JP:7606] (2 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (3 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (4 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (5 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (6 of 17) [CW-10242/2025] 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. [2026:RJ-JP:7606] (7 of 17) [CW-10242/2025] (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. [2026:RJ-JP:7606] (8 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (9 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (10 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (11 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (12 of 17) [CW-10242/2025] 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 [2026:RJ-JP:7606] (13 of 17) [CW-10242/2025] 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 delivery of possession to the decree holder, [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: [2026:RJ-JP:7606] (15 of 17) [CW-10242/2025] “11. The law lies in favour of the interpretation 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 [2026:RJ-JP:7606] (16 of 17) [CW-10242/2025] 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) [2026:RJ-JP:7606] (17 of 17) [CW-10242/2025] 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/