Decree for injunction or possession
Anjali Arya
(Querist) 11 December 2013
This query is : Resolved
I have a Decree in my favor passed in a Injunction Suit directing JD (who was a licensee) to vacate Suit Property and hand over the Keys to me. Failing which Decree Holder can Evict him through Execution.
Property is in Delhi.
My counsel says that
1. Warrant for Possession cannot be issued in a Decree passed in a Suit for Injunction. (as Full Bench Judgment of Delhi HC says so)
2. Being a Licensor I am already in Possession of the Property. Hence no need of Warrant of Possession.
3. Court will evict JD and I will have to occupy Suit premises immediately.
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But I have some doubts :-
Q 1. Whether it is a Decree for Possession passed in a Suit for Injunction ?
Q 2. Whether I can get Warrant for Possession in this Decree ?
Q 3. Whether Court can handover Keys to me after evicting JD ?
Any other useful advice is also solicited.
krishna mohan
(Expert) 11 December 2013
Your counsel view that you are already in possession not clear. If holding possession why the decree was passed directing JD to vacate the said property. Perhaps more details can help understand the case clearly.
Anjali Arya
(Querist) 11 December 2013
JD was a licensee whose license was revoked he became illegal occupant.
The Judgment in our case states that
Licensor always remain in Possession.
V R SHROFF
(Expert) 11 December 2013
"Being a Licensor I am already in Possession of the Property:
THIS IS TRUE :
But
u R IN LEGAL POSSESSION,
AND NOT A VACANT PEACEFUL PHYSICAL POSSESSION...
WHAT U NEED IS PHYSICAL POSSESSION
Due course of Law declared it's verdict.
Last and Final Step is : Execution is needed, so awaiting Execution of Decree Passed..
Anjali Arya
(Querist) 12 December 2013
Shroff Sir ... thank you.
Can you answer my questions ... Please.
Q 1. Whether it is a Decree for Possession passed in a Suit for Injunction ?
Q 2. Whether I can get Warrant for Possession in this Decree ?
Q 3. Whether Court can handover Keys to me after evicting JD ?
prabhakar singh
(Expert) 12 December 2013
1.Unless relief of possession was sought for
court would not grant it.
2.It appears a mandatory injunction order was passed against the defendant directing him to deliver possession to the plaintiff.
For breach there of defendant can be put in civil jail or his property can be attached and sold.Nothing beyond it court has power to do.
3.In execution of such a mandatory decree where no relief of possession was specifically sought,the executing court can not cause the possession to be delivered by bailiff,or commission,first ousting the JD and then putting DH in possession.It is legally impossible and beyond the scope of provisions laid in CPC.
In fact here a short cut route was applied
to avoid ad valorem court fees on market value and that has turned into a complex matter of law.
If it would be legally possible then no body would need any possession decree.
Raj Kumar Makkad
(Expert) 12 December 2013
I do agree with the opinion of Mr. Singh.
Anjali Arya
(Querist) 18 December 2013
Decree of Possession was granted in a Suit for Mandatory Injunction by Supreme Court in
Santlal Jain vs Avtar Singh case
If fact our case was also decided in the wake of this Supreme Court Judgment.
Anjali Arya
(Querist) 18 December 2013
Our Decree clearly states that
"... if Defendant fails to vacate the premises, it will be open for Plaintiff to execute the Decree and to evict Defendant."
Also,
Court had adjudicated that
Defendant is liable to handover vacant and peaceful possession to Plaintiff.
