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1991 DIGILAW 453 (KER)

Narayani v. Thankappan

1991-10-21

THOMAS

body1991
Judgment :- Petitioners were plaintiffs in a suit for permanent injunction. Suit was decreed ex parte. On the allegation that defendants violated the decree, petitioners took out execution proceedings for taking punitive action against defendants. Learned Munsiff, in execution, found that defendants are guilty of violation of injunction and ordered that one of the defendants (2nd defendant) be detained in civil prison for 30 days. It was further ordered that properties of defendants be attached for recovery of value )f the loss sustained by plaintiffs on account of violation of injunction (together with cost )f proceedings) as compensation. The said order was challenged by respondents in appeal before District Court. Appeal was allowed and the order of Munsiff was set aside, fence, this C.R.P. by the plaintiffs/ decree-holders. 2. The decree for injunction restrains defendants from taking yield or cutting res from the decree scheduled property or changing its shape or erecting any structure thereon or committing acts of waste etc. On 26-7-1975, execution petition was filed by the decree-holders (petitioners in this revision) complaining that defendants wilfully disobeyed the order of injunction by plucking coconuts and erecting new structures. Plaintiffs prayed for punitive action to be taken against defendants. 3. In the objections filed by defendants they submitted, inter alia, that it was due to some bona fide mistake regarding identity of property that coconuts happened to be plucked therefrom etc. A commissioner appointed by execution court visited the decree schedule property on 7-9-1975 and reported to the court that seasonal crops have been raised in the property. 4. Execution court found, on evidence, that defendants wilfully disobeyed the injunction. The court ordered like this: "In the result, under Order 39 Rule 2(a) of the Code, it is hereby ordered that the properties of the defendants will be attached and proceeded against under sub rule (2) for recovery of the value of the cocoanuts and cudjans amounting to Rs.40/- and the entire cost of the proceedings in this case as compensation by the plaintiffs. It is further ordered that the 2nd defendant will be detained in the civil prison for thirty days. The 3rd defendant, who is the wife of the 2nd defendant, was in all probability acting under the direction of her husband and so I do not think it necessary to send her to prison this time". 5. It is further ordered that the 2nd defendant will be detained in the civil prison for thirty days. The 3rd defendant, who is the wife of the 2nd defendant, was in all probability acting under the direction of her husband and so I do not think it necessary to send her to prison this time". 5. Learned District Judge, on the other hand, found that there was no wilful disobedience of the decree till 7-9-1975 (date of visit by commissioner advocate ). He also found that no satisfactory and cogent evidence has been adduced to prove that after 7-9-1975 defendants continued to take yield from plaint schedule property etc. District Judge, however, observed thus: "It is well settled that the execution court cannot enforce a decree for permanent injunction by the detention of the judgment debtors in civil prison or by the attachment of their property" and further observed that "in order to justify the execution court to order detention of the judgment debtors in civil prison as a punitive measure for disobedience of a decree for injunction, it must be proved that the failure on the part of the judgment debtors to obey the decree was wilful". District court, however, excused the defendants for what they did before 7-9-1975 and noted that defendants have, since the said date, been abiding by the terms of injunction. 6. Learned counsel for petitioners contended that District Court committed a grave error in interfering with the order passed by execution court and also by denying the decree-holder damages for the acts of misfeasance committed by defendants in violation of decree. 7. Both the courts below proceeded on a wrong assumption that execution court has power to punish the judgment debtor who disobeyed the directions in the decree. Execution court held an erroneous view that it has power by virtue of Order 39 Rule 2(a ) of the Code of Civil Procedure to punish a party who disobeys the injunction decree. It is clear that what is envisaged in the Rule is not intended to be exercised by execution court. The words in Rule 2(a ) (i) "the court granting the injunction or making the order, or any court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience.... "do not include execution court,. The words in Rule 2(a ) (i) "the court granting the injunction or making the order, or any court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience.... "do not include execution court,. Nor does the sub-rule apply to the case of disobedience of a permanent injunction embodied in a decree. The sub-rule primarily intends to deal with a case of disobedience or breach of an injunction order passed by a court under Order 39 Rules 1 and 2. Here, the execution court clearly went wrong in trying to invoke the said powers. 8. District Court also went wrong in holding that "it is well settled that execution court cannot enforce a decree for permanent injunction by detention of judgment debtors in civil prison or by attachment of their property". Order 21 Rule 32 of the Code is intended to enforce certain classes of decrees. On such class is a decree for injunction. Such a decree can be enforced by detention of the disobeying party in civil prison or by attachment of his property or by both. It is now well settled that Order 21 Rule 32 (a) would apply to decrees for injunction even if it is only one of prohibitory injunction. T.S. Krishnamoorthy Iyer, J. has made reference to a number of decisions in Varkey v. Cheeran Narayanan (1968 KLT 711) which took the view that Order 21 Rule 32(1) is applicable to cases of decrees of prohibitive injunction also (vide Chinnabba v. Chengalraya, AIR 1950 Madras 237; Manjappa Shetty v. Manjakke Shedthi, AIR 1961 Mysore 268; Murari Lai v. Naval Kishore, (AIR 1961 Punjab 547). 9. But Order 21 Rule 32 is not intended to punish a contumacious party. The said rule can be invoked only for enforcement of a decree. Detention in civil prison or attachment of property can be resorted to only so long as the decree stands unenforced. Once a decree has been enforced, or complied with the judgment debtor is not liable t6 be detained in prison and his property is not liable to be attached under Rule 32(1). During detention of judgment debtor in civil prison for enforcement of a decree LI it is reported that the decree has since been enforced the judgment debtor is entitled to be released forthwith. During detention of judgment debtor in civil prison for enforcement of a decree LI it is reported that the decree has since been enforced the judgment debtor is entitled to be released forthwith. For what took place in the past he cannot be retained in prison for any further period under Order 21 Rule 32. If violation or disobedience of a decree for injunction is sought to be visited with punitive consequences, the only remedy available in law, as matters stand at present, is to initiate proceedings under the law of Contempt of Courts against the person concerned. There is no other provision for imposing punishment for disobedience of a term or command contained in a decree for injunction, prohibitory or mandatory. 10. A Division Bench of Gujarat High Court (Hiralal Hargovindas v. P.S.- Patel, AIR 1969 Gujarat 28) considered this question and observed that the provisions in Order 21 Rule 32 are made to enable a party to enforce the injunction contained in the decrees or orders "but not for the purpose of empowering the court to punish a party guilty of disobedience". Similar observation has been made by Gupta, J., in Subasingh v. Bagicha Singh (AIR 1980 Punjab & Haryana 62) "The purpose of detention under Order 21 Rule 32 (1) is for the enforcement of the decree for an injunction etc. and therefore, the question of providing any maximum period, in the nature of things, does not arise. The person detained will be released as soon as he satisfies the decree against him, that is, the wrong done by him is undone, which is within his powers to do". Goyal, J. has also observed in Dalip kaur v. Harbans Singh (AIR 1989 Punjab and Haryana 16) that "proceedings under Rule 32 are not meant to punish the judgment debtor for disobedience of the decree. If the judgment debtor renders himself incapable of performing the decree, he may be liable to be proceeded against under the Contempt of Courts Act and no action under Rule 32 can be taken by way of punishment of the "judgment debtor". 11. If the judgment debtor renders himself incapable of performing the decree, he may be liable to be proceeded against under the Contempt of Courts Act and no action under Rule 32 can be taken by way of punishment of the "judgment debtor". 11. Learned counsel made a reference to the decision of Padmanabhan, J. in Padmanabhan v. Narayanan 1987 (2) KLT 260 in which High Court set aside the order by which two judgment debtors were directed to be detained in civil prison for 15 days each for cutting two jack trees in disobedience of a decree for injunction. It cannot be discerned from the said judgment that the aforesaid action was considered as a punishment for disobedience of injunction. On the contrary, learned single judge has made observation that object of Rule 32(1) is to enforce the injunction contained in the decree and not to punish a party guilty of disobedience. "Resort cannot, therefore, be had to the rule for the purpose of punishing a person for breach of an injunction". 12. Position is thus clear that the execution court acted without jurisdiction when it exercised powers under Order 39 Rule 2(a ) and the District Judge observed wrongly that execution court has power to detain the judgment debtor in civil prison as a punitive measure. Decree holder did not-advance a contention that judgment debtors still persisted in disobeying the terms of injunction contained in the decree. It is open to the decree holders to move the execution court to resort to steps under Order 21 Rule 32 of the Code for enforcement of the decree if judgment debtors are still defying the terms of injunction decree. C.R.P. is disposed of with the above observations.