Injunction
Shumaila Altaf
(Querist) 18 November 2012
This query is : Resolved
I had filed a suit for declaration and permanent injunction while i was in possession. the suit was decreed in my favour. the court passed an exparte decree declaring me as the owner and restraining the defendants from interfering with my peaceful possession. now after the decree, the defendants forcibly dispossessed. what remedy do I have???
prabhakar singh
(Expert) 18 November 2012
File execution petition in court that decreed
the suit.
Shumaila Altaf
(Querist) 18 November 2012
yes I sir even I thought the same. actually I'm working as an apprentice lawyer and my senior says since we have been dispossessed , the execution can't help. so he filed suit for possession.. I'm a bit confused.. like then how did the permanent injunction decree help us?
prabhakar singh
(Expert) 18 November 2012
I disagree with your seniors view.
V R SHROFF
(Expert) 18 November 2012
file execution petition as advised by Shri Prabhakar Singh
Shumaila Altaf
(Querist) 18 November 2012
thank you. even I disagree but since he won't listen to me considering I'm a fresher..He said that had it been a decree for possession, the execution could have helped. but since we are out of possession now and the decree is only for declaration and permanent injunction, it can't help us. I also want to know is there any limitation as to it's execution.
prabhakar singh
(Expert) 18 November 2012
Your senior is expected to take resort of section 51 read with section 151 and order 21 rule 32 of the C.P.C.A decree for permanent injunction has the effect of restraining the judgment-debtor permanently from obstructing the enjoyment of the property covered in the decree. Such a decree can only be satisfied by obeying it. In the event of its disobedience, it can always be put into execution. The decree has a permanent and perpetual life. It can be put into execution at any time to prevent breach or to prevent apprehended breach, subject to the law of limitation for the time being in force.
prabhakar singh
(Expert) 18 November 2012
The following and many other may be found useful.
AIR 2003 Bom 77(http://www.indiankanoon.org/doc/1302175/)
Shionarayan Jaiswal vs. Ramdhani Choudhari & Anr., in Contempt Petition No.72 of 1988 on 30th November, 1988, (unreported) by Nagpur Division Bench.
Shumaila Altaf
(Querist) 18 November 2012
yes sir ,but could you please explain what does 'prevention' here mean. As you said,it can be put into execution at any time 'to prevent' breach... does it still hold good in the situations where I have failed to 'prevent' the breach and have been dispossessed.. that means where the defendants have forcibly succeeding in dispossessing me and are now in possession
Shumaila Altaf
(Querist) 18 November 2012
can you please help me on this, cos it's really confusing me
ajay sethi
(Expert) 18 November 2012
you have got a decree passed in your favour . Defendant did not contest the suit filed by you . hence court passed an order in your favour . the defendant has wilffully disobeyed orders passed by court . you have to take execution proceedings as advised by mr singh . go through judgements cited by prbahakar singh .
the words prevention mean to see that ordsr passed by court are complied with and not violated
Jai Karan Nagwan
(Expert) 18 November 2012
Mr. Shumaila,
My opinion is dissenting to all other learned experts. Without prejudice, I endorse the suggestion given by your senior advocate. there is no question of execution proceeding, since you stated that you are already in possession and court decreed in your favour.
other party disposses you without due process of law. Please think to proceed under Section 5 of Specific relief Act for recovery of possession and dont waste time you have only six month to file suit for recovery of possession.
Shumaila Altaf
(Querist) 18 November 2012
then sir, Mr. Jai Karan Nagwan, I fail to understand, how does a permanent injunction help.. if even after having a injunction decree in your favour, you still have to file foe recovery, then what for was the injunction
V R SHROFF
(Expert) 18 November 2012
as u say : u r jr.
Just follow what ur Sr says.
He may hv another plan in mind.
u r too new to Legal practice..
Ur duty to learn from ur Sr.
Otherwise hv to leave him & start own practice, and after 10 yrs, u may do the same thing , what ur Sr. doing. u will understand later,
Shumaila Altaf
(Querist) 18 November 2012
Sir, Mr. V R Shroff, first you asked me to follow shri Prabhakar Singh's advice, now you are asking me to do what my sir is saying..so now I'm really not sure what is your opinion..
V R SHROFF
(Expert) 18 November 2012
I mean, now u r following instructions of your Sr.
So he can explain you better, the motives behind. If u r not in confidential stage, being Jr.,
It is advisable to just follow his instructions.
So, Just follow what ur Sr says.
[ Boss is always right. ]
It will takes years for u to understand!!
who does what ? for what!!
After all, it is Legal Practice!!
Sorry to say, The Question with Police & Advocate is not who is right , and what is right..
The Question is : What is your Objective..
& What should be done to achieve it!!
Still if u can't understand, better you either follow your Boss order or Quit him.
Legal Practice cannot be theoretical, It is Practical.
Is it clear now for u??
Shumaila Altaf
(Querist) 18 November 2012
then my question would be.. If my objective is to get my client back in possession as soon as possible, what is the best remedy available in your opinion...?
V R SHROFF
(Expert) 18 November 2012
U said he is not ur client, and u hv to listen to ur Sr.
So he is ur Sr. client .
u were replied well in advance that
"file execution petition "
but u r talking of ur Senior, & u says you work as Junior to him .
Did client came to you, or to your Boss?
r u authorised to handle the case as u like?
These are important Questions.
Reference is also a vital point.
Raj Kumar Makkad
(Expert) 18 November 2012
Instead of diverting the main query here and there, I directly come to you. In the given case, you also obtained the decree of permanent injunction against the defendant which has deliberately been violated by himso you have only option to get that decree executed under order 21 Rule 32 of CPC and you shall also have to file a separate petition under Order 39 Rule 2A read with section 151 of CPC seeking recovery of possession.
Shumaila Altaf
(Querist) 18 November 2012
but sir I think order 39 rule 2A is only in case of interim order
Khaleel Ahmed Mohammed
(Expert) 20 November 2012
I have different opinion , it is purely tress pass case. File a criminal complaint before Criminal Court.
