The Himachal Pradesh High Court has held that an executing court can take steps to restore the situation that existed when an injunction decree was passed, if the protected water channel is subsequently dismantled. The Court directed the executing court to appoint a Local Commissioner to investigate the alleged destruction of the irrigation channel before proceeding further.
Background
The dispute originated from a civil suit filed by Mast Ram in 2003 against Kishore Chand. On November 28, 2006, the trial court decreed the suit, recognising Mast Ram's right to irrigate his land through an existing sub-water channel known as a challah. Kishore Chand was restrained from obstructing or interfering with the flow of water.
After the decree attained finality, Mast Ram initiated execution proceedings, alleging that the channel had been dismantled and access to irrigation water had been obstructed. The judgment-debtors disputed the allegations, although the dismantling of the channel was not disputed as an event in their pleadings.
Justice Virender Singh observed that the executing court could not simply refuse restoration on the ground that the original decree did not expressly grant a mandatory injunction. The Court noted that there was no evidence beyond Mast Ram's oral statement to establish that the channel had actually been dismantled.
Relying on the Supreme Court's decision in Bhudev Mallick alias Bhudeb Mallick v. Ranajit Goshal, 2025 INSC 175, the High Court explained that Order XXI Rule 32 of the Code of Civil Procedure empowers executing courts to enforce injunction decrees, including by ordering restoration where legally justified.
The Court observed:
"The facts and circumstances of the present case, if judged in light of the decision of the Hon’ble Supreme Court, as referred to above, then, in the considered opinion of this Court, the learned Executing Court is bound to restore the situation, which existed on the spot, at the time of passing of the decree, by the learned trial Court and the attachment of the property of the Judgment Debtors would not restore the situation, which existed on the spot, at the time of passing of the decree."
The High Court further held that the executing court should have appointed a revenue agency to ascertain whether the channel had been dismantled rather than rejecting restoration without proper verification.
Setting aside the executing court's December 12, 2025 order, the High Court allowed both petitions and remanded the matter for fresh consideration. It directed the appointment of a Local Commissioner to inspect the spot and determine whether the sub-water channel had been dismantled.
The Court directed the parties to appear before the executing court on October 16, 2026, and expected the execution proceedings to be decided afresh within four months, by January 31, 2027.
The Court ordered:
"The matter is remanded back to the learned Executing Court with a direction to appoint a Local Commissioner to ascertain the situation, existing over the spot, i.e. with regard to dismantling of the sub-water channel (challah), as alleged by the Decree Holder and thereafter, proceed further, in accordance with law, especially in view of the decision of the Hon’ble Supreme Court in Bhudev Mallick’s case (supra)."
