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Israr Ahmad Khan & Another v. Smt. Sharda Devi & Another - WRIT - C No. 7912 of 2006 [2006] RD-AH 4853 (1 March 2006)


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Court No. 23

Civil Misc. Writ Petition No. 7912 of 2006

Israr Ahmad Khan & another Vs. Smt. Sharda Devi & another

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

This petition challenges the order dated 18.1.2006 (Annexure 25) passed by the executing court and also the order dated 01.02.2006 (Annexure 26) passed by the revisional court.

Learned counsel contends that a decree for permanent injunction was passed in a suit in which the petitioners are judgment debtors and the respondents are decree holders. That decree was put in execution in which prayer for permission of construction of wall has also been made, which was though, allowed by the executing court but the revisional court and this court in the writ petition held that the decree for construction of a wall was nowhere and therefore, the executing court was not supposed to pass an order for such construction of the wall. The other part of the prayer in execution for attachment  of the property of judgment debtor was permitted to continue by this court in writ petition No. 53360 of 2003 vide order dated 25.1.2005 (Annexure 13). Subsequently the petitioners-judgment debtors moved the executing court that the decree holder had already completed the construction in the land relating to which prohibitory decree was passed and that the attachment should be ordered to cease. It appears from the impugned order passed by the executing court that discharge of attachment of the petitioners' property was refused by the court on interpreting the order of this court dated 25.1.2005 (Annexure 13).

As per the provisions of Order XXI, Rule 32  C.P.C. if there is some violation of the decree on the part of judgment debtor, his property is to be attached but the provision itself does not speak of continuance of such attachment for all times to come. In the like manner the order of this court passed in aforesaid writ petition No. 53360 of 2003 also does not speak of continuance of the said attachment for all times to come. The executing court when finds that there is no violation of prohibitory decree passed by it, the attachment should be ordered to cease and vacated. Therefore, in case there is no continuance of such violation of the decree, the court has to pass orders in accordance with law only and also in the light of orders of this court dated 25.1.2005. The attachment shall not be permitted to continue forever. Whether there is violation of decree or not is a question to be considered by the court below and this court in writ jurisdiction will not go into all these factual details.

With the aforesaid observations, writ petition stands disposed of.




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