Eviction Can Follow Confirmation of Possession—No Need for Separate Recovery Decree: Orissa High Court

“A decree for confirmation of possession, once violated, can be enforced by removing obstruction—Courts cannot allow judgment-debtors to defeat decrees by unlawful re-entry,”  In a landmark judgment clarifying the enforceability of declaratory and injunction decrees, the Orissa High Court dismissed a petition filed under Articles 226 and 227 of the Constitution challenging the maintainability of execution proceedings that sought eviction of a judgment-debtor who had forcibly entered the property after the decree had attained finality. The Court held that a decree confirming possession along with a permanent injunction is legally enforceable by way of eviction when the decree-holder is dispossessed post-decree.

Justice Sashikanta Mishra reaffirmed that "a decree of confirmation of possession is not an empty formality", and when the judgment-debtor commits trespass in breach of such a decree, he cannot insist that eviction is impermissible merely because the decree lacks an explicit direction for recovery of possession.

“Courts Cannot Allow Decree-Holders to Be Relegated to Fresh Suits—Execution Must Be Real, Not Illusory”

Observing that the judgment-debtors had lost in three successive rounds of litigation, the Court emphasized that their re-entry into the suit land was an abuse of the process of law. “The decree was for declaration of title, confirmation of possession and permanent injunction. Once the decree-holder was forcibly dispossessed, the decree cannot be rendered meaningless merely because it did not use the phrase ‘recovery of possession’,” held the Court.

Rejecting the argument that the decree could only be enforced under Order XXI Rule 32 of the Civil Procedure Code (CPC), the Court held that when obstruction occurs to the enforcement of a decree of possession, the removal of such obstruction by eviction is permissible under Rule 35 CPC, as long as the decree-holder seeks to give effect to the original decree, not enlarge it.

“It would be giving a handle to a person who has lost the litigation at all stages. It would also amount to an abuse of the process of the Court,” the Court remarked while condemning the judgment-debtor's tactic of repeatedly obstructing execution.

“No Fresh Suit Needed Where Right, Title and Possession Are Already Declared by Court”

The decree in question had originated from T.S. No. 148 of 1981, in which the decree-holder's father had sought declaration of title, confirmation of possession, and permanent injunction. This decree was passed in 1983, upheld in appeal in 1987, and confirmed in second appeal by the High Court in 2008.

It was only after all appellate remedies were exhausted that the judgment-debtor forcibly entered the land, prompting the decree-holder to initiate Execution Case No. 13 of 2012. The judgment-debtor then began filing multiple objections under Section 47 CPC, all of which were dismissed.

“The judgment-debtor cannot obviously be allowed to frustrate the decree against him simply by stepping onto the suit land and claiming that there is no decree for recovery of possession,” observed the Court.

“Frivolous and Repetitive Objections in Execution Amount to Judicial Abuse—Doctrine of Res Judicata Applies in Spirit”

The High Court took strong exception to the serial filing of Section 47 CPC applications by the judgment-debtor. While technically each objection might raise different aspects, the Court held that once the execution court has ruled on the enforceability of the decree, repeated objections on the same premise amount to a misuse of judicial process.

Relying on the Supreme Court’s observations in Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418, the Court noted:

“Frivolous and malafide objections or resistance raised to execution of the decree should be dealt with sternly.”

It added that "repeated challenges to execution, on identical or marginally varied grounds, defeat the very objective of civil justice".

“Decree of Permanent Injunction Has No Time Limit for Enforcement—Article 136 Limitation Act Not Attracted”

On the plea that the execution was time-barred, the Court clarified that when a decree includes a permanent injunction, it is not governed by the 12-year limitation prescribed under Article 136 of the Limitation Act.

The Court reasoned that since the interference with possession occurred after the second appeal was decided in 2008, and the execution was initiated in 2012, the cause of action arose upon violation of the injunction, and hence the execution was not barred by limitation.

“The execution case was filed when the decree-holder found that the judgment-debtor had forcibly entered into the suit land,” the Court held.

“Executing Court Can Interpret Decree to Determine Mode of Enforcement—Not Required to Sit Idle”

Rejecting the petitioner’s reliance on the Supreme Court’s ruling in Bhavan Vaja v. Solanki Hanuji (AIR 1972 SC 1371) and the Delhi High Court Full Bench decision in Sarup Singh v. Daryodhan Singh, the High Court distinguished the present case on facts.

The Court noted: “In the instant case, the decree-holder is asking for enforcement of the decree passed in his favour, inasmuch as his possession having been confirmed and there being an order of restraint passed against the defendant, he sought for removal of the defendant in line with the decree for permanent injunction.”

It clarified that the executing court’s power is not to amend the decree, but to determine its true scope and enforceability in light of post-decree developments.

“Undue Technicality Cannot Be a Shield for Willful Disobedience”

Justice Mishra firmly held that the law cannot be interpreted in a manner that helps a party benefit from its own wrong. The judgment-debtor, having lost at all levels, cannot simply re-enter the property in breach of the injunction and then hide behind procedural gaps in the decree.

“Relegating the decree-holder to file a fresh suit would be nothing short of judicial cruelty—it would amount to treating a decree passed and upheld by three courts as worthless,” the Court stated.

The Civil Miscellaneous Petition was dismissed with a clear direction to the executing court: “The executing Court is directed to proceed with the execution case as expeditiously as possible and to make all endeavour to conclude it in accordance with law within two months from today.”

Date of Decision: 19th December 2025