Order 21 Rule 32 CPC | Proof Of Violation By Way Of Expert Evidence Regarding Age Of Construction Is Mandatory: Himachal Pradesh High Court

"Not much reliance can be placed on the report of Tehsildar, as to take action against the J.D., for violation of the judgment and decree, under Order 21 Rule 32 CPC, evidence of some expert is required." Himachal Pradesh High Court held that in execution proceedings involving allegations of unauthorized construction in violation of a permanent prohibitory injunction, the court must rely on expert evidence to determine the age of the construction before ordering coercive measures.

A bench of Justice Virender Singh observed that a summary report from a local official like a Tehsildar is insufficient to establish a breach of a decree under Order 21 Rule 32 of the Code of Civil Procedure (CPC).

The dispute involves a plot of land where the trial court had previously passed a decree for permanent prohibitory injunction in 2015, restraining both parties from raising any construction until the land was legally partitioned. Following the finality of this decree, the decree holders filed an execution petition under Order 21 Rule 32 CPC, alleging that the judgment debtor (JD) had violated the decree by raising new construction on the site. The executing court had subsequently ordered the attachment of the JD's property based on a report submitted by a local commissioner, which the JD challenged before the High Court.

The primary question before the court was whether the execution of a permanent injunction decree based on allegations of post-decree construction can be sustained without conclusive expert evidence establishing the age of such construction. Additionally, the court examined whether a report by a revenue official, such as a Tehsildar acting as a Local Commissioner, suffices to meet the threshold of proof required for penal action under Order 21 Rule 32 CPC.

Standard of Proof in Execution

The Court emphasized that once a judgment and decree attains finality, the executing court is empowered to punish the violator under the provisions of Order 21 Rule 32 CPC. However, the bench clarified that the burden of proving that construction was raised after the passing of the decree lies heavily on the decree holder. Mere allegations or non-technical reports are insufficient to trigger the stringent provisions of attachment or civil imprisonment.

Necessity of Expert Evidence

Addressing the reliance placed on the Tehsildar's report, the court noted that such reports lack the technical precision required to differentiate between old structures and fresh encroachments. The court held that to establish a violation of a specific court mandate, the testimony or report of a qualified expert is essential to ascertain the precise age of the construction.

"Not much reliance can be placed on the report of Tehsildar, as to take action against the J.D., for violation of the judgment and decree, under Order 21 Rule 32 CPC, evidence of some expert is required."

Appointment of Expert Commissioner

The High Court set aside the impugned order of the executing court, which had ordered the attachment of the property without sufficient technical verification. The matter was remanded back to the executing court with specific directions to appoint a competent expert to visit the site and provide positive findings regarding the age of the structure.

Time-Bound Disposal of Execution

Recognizing that the original decree dated back to 2015, the court expressed its concern regarding the protracted nature of the litigation. The executing court has been directed to conclude the proceedings afresh within a period of four months from the date of the parties' appearance. The parties are directed to appear before the executing court on October 26, 2026.

Date of Decision: 05 October 2026