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1992 DIGILAW 409 (KER)

Rabiya Umma v. Sulaiman Haji

1992-10-28

RAMAKRISHNAN

body1992
Judgment :- The short question arising for consideration in this revision is whether the dismissal of the execution petition filed by the revision petitioner under Order XXI Rule 32, C.P.C. as not maintainable on the ground that it has been filed only for punitive action is sustainable in law? 2. Revision petitioner is the decree holder in O.S. No. 118 of 1987 on the file of the Munsiff s Court, Taliparamba. The decree is only against the first respondent in this revision and the relevant portion of it is in the following terms: "the defendant be and hereby restrained by an order of permanent injunction from trespassing into plaint B schedule property shown below corresponding to plot AFGII as shown in Ext. C2 plan and from causing any waste therein". 3. Petitioner filed E.P. No. 162 of 1991 alleging that the respondents have trespassed into the plaint B schedule property corresponding to plot'AFGH' as shown in Ext. C2 plan and have filled up a portion of the property with earth and has obliterated the boundary separating the plot from the adjoining land in violation of the decree for injunction. On the basis of the said allegations, the petitioner prayed for an order to detain the respondents in civil prison. Second respondent was impleaded on the basis of the contention of the first defendant in an earlier E.P., namely, E.P. No. 180 of 1991 to the effect that he has assigned all his rights in the property to the second respondent. Petitioner also prayed for issuance of a commission to inspect the property and to report about the acts alleged to have been committed by the respondents in the property in question. The Commissioner after inspection submitted an interim report seeking further directions in the matter. 4. First respondent remained ex parte. Second respondent filed a counter denying the allegation of trespass and other acts of waste contained in the execution petition. She further contended that she was not a party to the decree and as such she cannot be proceeded against in execution of the decree in O.S. No. 118 of 1987. 5. 4. First respondent remained ex parte. Second respondent filed a counter denying the allegation of trespass and other acts of waste contained in the execution petition. She further contended that she was not a party to the decree and as such she cannot be proceeded against in execution of the decree in O.S. No. 118 of 1987. 5. The execution court has, without going into the merits of the allegations contained in the E.P. dismissed the same slating that the E.P. is filed only for punitive action and as such the same is not maintainable in the light of the decision reported in Karthu Narayani v. Narayanan Thankappan (1991 (2) KLT 704 = (1991 (2) r KLJ 683). The petitioner has challenged the correctness of the said order in this revision. 6. From the impugned order, it is clear that the execution court has come to the conclusion that the E.P. is only for punitive action solely on the basis of the prayer made in the E.P. for detaining the respondents in the civil prison. After quoting the prayer portion contained in the E.P., the execution court has mechanically come to the above conclusion without going into the merits of the allegations of trespass and other acts of waste contained in the E.P. Such a conclusion reached without considering whether the respondents have committed the acts alleged in violation of the decree for injunction cannot be sustained in law. Before coming to the conclusion that the detention of the respondents in civil prison is made only as punitive action, the execution court should have gone into the merits of the allegations of trespass and other acts of waste and should have decided whether the decree holder has made out a case for enforcement of the decree for injunction passed in his favour. It is only after such consideration, the execution court could have found that the prayer for detention of the respondents in civil prison is made only for the purpose of punishing the respondents and no t for the purpose of enforcement of the decree for injunction. The decision reported in Karthu Narayani v. Narayanan Thankappan (1991 (2) KLT 704 = (1991 (2) KLJ. The decision reported in Karthu Narayani v. Narayanan Thankappan (1991 (2) KLT 704 = (1991 (2) KLJ. 683) may have application only in a Case where there is no need for enforcement of the decree for injunction and the detention is sought only for the purpose of punishing the respondents for a violation of the decree for injunction and where the decree holder fails to establish a case for enforcement of the decree for injunction. 7. While dealing with the remedies open to the holder of a decree for prohibitory injunction in case it is violated by the judgment debtors, Panchapakesa Ayyar, J. has in the decision reported in Nari Chinnabba Chetty v. Chengalroya Chetty (62 L.W. 867) observed thus: "The decree holder in the case of a prohibitory injunction has not only got a right of suit in such a case, in order to get a mandatory injunction for the removal of the obstructions etc., but has also the easier remedy under 0,21, R.32(1). He can ask for the detention of the judgment debtor in the civil prison, or the attachment of his property, or both and a Court can order either or both of these things to be done incase the judgment debtor will not remove the obstruction on the path preventing the decree holder from using the path, within a lime prescribed by it. Such an order of Court will be normally quite effective, and will enable the decree holder to enjoy the fruits of his decree " 8. The above observations would clearly indicate that the judgment debtor in a decree for prohibitory injunction can be ordered to be detained in civil prison in enforcement of the decree even after its violation in appropriate cases where the violation is of a continuing nature or the result or effect of it would amount to or constitute continued violation of the decree affording the decree holder a cause of action for seeking enforcement of the decree by detention of the judgment debtor in civil prison for the purpose of enjoying the fruits of the decree obtained by him. 9. 9. Thus, in my view, before dismissing the E.P. on the ground that it is only for the purpose of punitive action, the execution court should have gone into the merits of the allegations contained in the E.P. and should have considered whether the decree holder has made out a case for enforcement of the decree and for that purpose whether it is necessary to order detention of the respondents in prison. 10. In this view, the order passed in E.P. No. 162 of 1991 is set aside. The E.P is restored to file for disposal afresh in accordance with law and the observations contained in this order. I make it clear that 1 have not expressed any opinion on the merits of the E.P. and that it is open to the respondents to raise all contentions available in law including the maintainability of the E.P. on all grounds. C.R.P. is allowed as indicated above. No order as to costs.