# Court in Malvika Shekhar v. Director of

- **Citation:** (2008) 2 ILRA 444
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-13
- **Case number:** Civil Misc. Writ Petition No. 38949 of 2002
- **Bench:** V.M. Sahai, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-malvika-shekhar-v-director-of-41087
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order XXI Rule
32-readwith Constitution of India Art.
226-Restoration of possession-civil court
decreed the suit in favour of petitionerupheld upto second Appeal-No SLP filed
before Apex Court-private Respondentson application under Section 156 (3)
Cr.P.C. got arrested and during this
period wrongly taken possession of the
house in question-once decree became
final-petitioner to approach before civil
Court for execution-No separate suit or
writ
petition
maintainable
otherwise
there will be endless litigation-petition
dismissed.
2 All] Smt. Sharda Saharan V. Director General of Police, U.P. and others
445
Held: Para 8

Thus, we are of the opinion that the High
Court cannot interfere in the matter in
dispute in this writ petition because
effective remedy has been provided
under Order XXI Rule 32 C.P.C. for
execution
of
decree
for
prohibitory
injunction.
Case law discussed:
AIR 1991 SC 2251, AIR 1993 SC 1225, 1995
(2) ARC 48, 1995(1) ARC 553, 1995(1) ARC
476, 2007 (3) (SCALE) 465, 2001, (1) Punjab
LR 23

## Text

444 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
lectures in a month, he has a right to
refuse any further responsibility to teach
the students and in such a situation the
management
would
have
to
make
alternative arrangement.
15. It may also be pertinent to
mention here that under the statutory
provisions there is a complete prohibition
for ad-hoc appointment of teachers after
the withdrawal of Section 16 of the
Commissions
Act.
The
Government
Order under which the petitioner claims to
have been appointed itself has been a
subject matter of challenge before this
Court in Malvika Shekhar Vs. Director of
Higher Education, U.P. & Ors., (2004) 1
A.W.C.
321
wherein
after
making
reference to the statutory provisions, the
Court came to the conclusion that the
appointment on honorarium is void ab
initio as it is prohibited under the statute.

16. Another Division Bench of this
court In Alok Singh Vs. State of U.P.,
(2002) 2 ESC 427 has held that the terms
and conditions of appointment as a part
time lecture under Government Order
dated 7-4-1998 are entirely different visa-vis lecturers appointed on regular basis.

17. It is pointed out that the said
judgement in Malvika Shekhar (supra)
had been challenged before the Hon'ble
Supreme
Court
and
still
pending
consideration and the persons working on
honorarium
have
been
allowed
to
continue because of the interim order
passed by the Apex Court in the said case.

18. In view of the above, the petition
is devoid of merit and is accordingly
dismissed. However, if the petitioner feels
aggrieved that he is being exploited by the
Committee of Management and is being
forced to work in contravention of the
said Government Order dated 17th April,
1998 or terms and conditions incorporated
in his appointment letter, he is at liberty to
approach the Civil Court for damages
against the management of the college.
However, he cannot be permitted to have
any claim against the public exchequer.

 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 38949 of 2002

Smt. Sharda Saharan

...Petitioner
Versus
Director General of Police, U.P. and
others

 ...Respondents

Counsel for the Petitioner:
Sri L.P. Naithani
Sri Pankaj Agarwal
Sri M.K. Gupta

Counsel for the Respondents:
Sri G.K. Singh
Sri L.M. Singh
S.C.

Code of Civil Procedure-Order XXI Rule
32-readwith Constitution of India Art.
226-Restoration of possession-civil court
decreed the suit in favour of petitionerupheld upto second Appeal-No SLP filed
before Apex Court-private Respondentson application under Section 156 (3)
Cr.P.C. got arrested and during this
period wrongly taken possession of the
house in question-once decree became
final-petitioner to approach before civil
Court for execution-No separate suit or
writ
petition
maintainable
otherwise
there will be endless litigation-petition
dismissed.
2 All] Smt. Sharda Saharan V. Director General of Police, U.P. and others
445
Held: Para 8

Thus, we are of the opinion that the High
Court cannot interfere in the matter in
dispute in this writ petition because
effective remedy has been provided
under Order XXI Rule 32 C.P.C. for
execution
of
decree
for
prohibitory
injunction.
Case law discussed:
AIR 1991 SC 2251, AIR 1993 SC 1225, 1995
(2) ARC 48, 1995(1) ARC 553, 1995(1) ARC
476, 2007 (3) (SCALE) 465, 2001, (1) Punjab
LR 23

(Delivered by Hon'ble V.M. Sahai, J.)

1. The petitioner is aggrieved from
her dispossession by respondent no.4
from House No. C-39, Sector 15, Noida,
Gautambudh Nagar and by way of this
petition, she has sought relief in the nature
of mandamus directing the respondent
nos. 1 to 3 to restore possession of her
house by evicting respondent no.4 and his
musclemen. She has also sought relief for
investigation of the case by police and
submit charge sheet in light of her
application Annexure-8 to the writ
petition.

2. We have Sri M.K. Gupta learned
counsel for the petitioner, Sri G.K. Singh,
Sri L.M. Singh and learned Standing
Counsel for the respondents.

3. It appears from the record that the
petitioner is owner of disputed house. The
respondent no.4 wanted to interfere in her
possession, therefore, she filed O.S. No.
842
of
1986
before
Civil
Judge,
Ghaziabad
which
was
decreed
on
27.4.1991 and Civil Appeal No. 74 of
1991 preferred by respondent no.4 against
the judgement and decree of trial court
dated 27.4.1991 was dismissed by 7th
Addl. District Judge, Ghaziabad vide
order dated 23.1.1992.The respondent
no.4 preferred Second Appeal No. 448 of
1991 before this Court, which too was
dismissed
on
18.2.2002.
These
judgements are Annexure-1 2, and 3 to
the writ petition. In para 7 of the writ
petition,
it
has
been
alleged
that
respondent no.4 did not prefer any SLP
before Hon'ble Supreme Court against the
judgement
of
High
Court.
When
respondent no.4 failed in his efforts to get
property in question from civil side, he
moved an application, under Section 156
(3)
Cr.P.C
before
Chief
Judicial
Magistrate, Gautambudh Nagar, copy of
which is annexure-4. The case was
registered by the police and the petitioner
and her husband apprehending their
arrest, moved the High Court under
Section 482 Cr.P.C. When they were
present in Allahabad in connection with
their petition under Section 482 Cr.P.C,
the respondent no.4 forcibly occupied the
house in question. The petitioner moved
the police authorities but of no avail,
hence she filed this writ petition.

4. The respondent no.4 filed
affidavit along with an application to
recall the order dated 4.10.2002 and in
that affidavit, he again challenged title of
house in question. From the judgement
Annexure1 to 3, it is evident that title and
possession of petitioner has been upheld
by the trial court as well as first appellate
court and High Court. There is nothing on
record to show that the judgement of High
Court was challenged by the respondent
no.4 before the Apex Court, as such, the
decree passed by 4th Addl. Civil Judge
(S.D.), Ghazlabad on 27.4.1991 in O.S.
No. 842 of 1986 was final. The judgement
of trial court shows that plaintiff had filed
suit for permanent prohibitory injunction
restraining
respondent
no.4
from
446 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
interfering with her title and possession
over the house in question. The legal
position is very clear. When decree-of
civil court has been passed and it has
become final, same can be executed by
the decree-holder against the judgementdebtor. For this purpose, no fresh suit or
writ petition need be filed. The relief
sought in the instant writ petition for
restoration
of
possession
is
not
maintainable
because
the
effective
remedy to get decree of civil court
complied with has been provided In
C.P.C. Learned counsel for the respondent
no.4 has cited AIR 1991 SC 2251 Ghan
Shyam Das Gupta and another Vs.
Anant Kumar Sinha and others, in
which the Apex Court has clearly opined
that if the elaborate and exhaustive
provision has been made in C.P.C. for
execution of decree, the writ petition
cannot be entertained. Similar view has
been taken by the Apex Court in the case
of Mohan Pandey Vs. Usha Rani
Rajgaria; AIR 1993 SC 1225. In the said
case, it has been observed that when there
is a dispute between two private persons
relating to immoveable property and the
eviction
suit
directly
covering
the
property in dispute is pending in Civil
Court, the writ petition for restraining the
respondents
from
disturbing
lawful
possession of the petitioner alleging some
complaints made by respondents and the
action taken by police thereon, is not
maintainable. Learned counsel for the
petitioner has cited following cases:

1. Mahish Goel Vs. Mohan Lal
Mehra and others; 1995 (2) ARC
48
2. Mohan Lal Mehra Vs. State of
U.P. And others; 1995(1) ARC 553
3. Jai Prakash Vashisht Vs. Addl.
District Magistrate(E) Meerut and
others; 1995(1) ARC 476.

We
have
gone
through
these
judgements. The facts were different. In
the said cases, prospective allottee had
occupied building and there was no
decree of civil court against them,
therefore, court interfered.

5. Learned counsel for the petitioner
has further cited case of M/s Popcorn
Entertainment and another Vs. City
Industrial Development Corporation
and another 2007 (3) (SCALE) 465, In
which the Apex Court interfered in the
matter relating to contract. The was also
no decree of civil court.

6. The facts of the present case
before us are different. In this case, the
petitioner filed suit against the respondent
no.4 for permanent prohibitory injunction.
The title and possession of petitioner was
upheld by the trial court as well as first
and
second
appellate
court.
Since
respondent no.4 was party to that civil
litigation, therefore, decree passed by
civil court was binding upon him. It
appears that respondent no.4 has not
obeyed decree rather disobeyed it and
occupied the house of the petitioner for
which he had been permanently restrained
by the civil court, therefore, the petitioner
has got effective remedy to approach the
court, which passed the decree, for
execution under Order XXI rule 32 C.P.C
which runs as under:

Rule-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
2 All] Smt. Sharda Saharan V. Director General of Police, U.P. and others
447
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 (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
directions 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 (six months) or P) if the judgement
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
may award to the decree-holder such
compensation as it thinks fit, and shall
pay the balance (if any) to the judgementdebtor on his application (A, AP,D, HP,
K. MP, M. PU).
(4) Where the judgement-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 (six months) (
D, HP, MP, PU) from the date of the
attachment,( AP, K, M) 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 process 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 judgement-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
doubt, it is hereby declared that the
expression" the act required to be done"
covers prohibitory as well as mandatory
injunctions).

ILLUSTRATION

A, a person of little substance, erects a
building which renders uninhabitable a
family mansion belonging to B, A in spite
of his detention in prison and the
attachment of his property, declines to
obey a decree obtained against him by B
and directing him to remove the building.
The Court is of opinion that no sum
realizable by the sale of A's property
would adequately compensate B for the
depreciation in the value of his mansion.
B may apply to the court to remove the
building and may recover the cost of such
removal from A in the execution
proceedings"

7. Learned counsel for the petitioner
has argued that provisions of Order XXI
Rule 32 C.P.C are applicable in the cases
where decree for mandatory injunction
has been passed, but this argument is not
acceptable in view of explanation added
to said Rule by C.P.C.(Amendment) Act
2002 (22/2002 w.e.f 1.7.2002). Learned
counsel for the petitioner has further
argued that under said provision, the
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
possession cannot be restored but we are
not going to accept this argument. Where
a decree-holder has been dispossessed
otherwise than in due course of law, he
can
get
possession
by
filing
an
application, under Order XXI Rule 32
C.P.C In Smt. Kasturi Devi and another
vs. Harbant Singh, AIR 2000 Punjab
and Haryana 271) and Nanda Vs. Ram
Dhan 2001, (1) Punjab LR 23 it has
been held that where judgement-debtor in
violation of decree has entered into
possession forcibly, civil court cannot sit
idle as a mere spectator. It has every
power to restore possession back to the
decree-holder. The civil court can refer
the
matter
to
the
police
for
implementation of decree. If any person
has been prohibited by the civil court
from doing a particular act, disobedience
on his part is actionable under the said
provision. The illustration added to the
aforesaid provision has clarified the
position. Now there is no doubt that the
civil court has every power to put the
decree-holder
in
possession
of
the
property in question which was subject
matter of dispute between the parties and
the judgement-debtor was restrained from
interfering with the peaceful possession of
the plaintiff. If the plaintiff is allowed to
start fresh litigation in respect of same
property, on each and every instance of its
disobedience by the judgement-debtor,
there would be no end of litigation. Any
proceeding taken by the police or criminal
court at the instance of judgement-debtor
has no effect on the decree passed by the
civil court.

8. Thus, we are of the opinion that
the High Court cannot interfere in the
matter in dispute in this writ petition
because effective remedy has been
provided under Order XXI Rule 32 C.P.C.
for execution of decree for prohibitory
injunction.

9. As regard the direction to the
police authorities about registration of
case and submitting charge sheet on the
application of petitioner is concerned, she
has also got alternative remedy. If the
police has not registered the case on her
application against respondent no.4, she
can very well approach the Magistrate
concerned under section 156(3) Cr.P.C or
file complaint against him and the court
will take appropriate action in accordance
with law.

10. In view of above, this writ
petition is dismissed.

No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2008

BEFORE
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No. 12197 of 2008

Smt. Geeta Singh

...Petitioner
Versus
State of U. P. and others ...Respondents

Counsel for the Petitioner:
Sri Niraj Tiwari

Counsel for the Respondents:
S.C.

U.P.
Recruitment
Dependant
of
Government Servant (Dying in Harness)
Rules
1974-Daughter-in
law-claim
appointment on death of her father-in
law-husband of the claimant already
expired-rejection of claim on hypertechnical ground-that the daughter-in
law is not within the meaning of family