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2001 DIGILAW 347 (HP)

RATTAN CLIAND v. NEELAM PARKASH

2001-11-23

KAMLESH SHARMA

body2001
JUDGMENT Kamlesh Sharma, J. :- The petitioner and proforma respondent No.2 to 4 are the judgment debtors, whereas respondents No. 1 is the decree holder. In this revision petition the petitioner judgment debtor is aggrieved by the order dated 28.2.2001 passed by the Sub Judge 1st Class, Sarkaghat, District. Mandi, whereby it is ordered that he will be detained in civil prison for one I month and his movable and immovable property will be attached for his deliberately not obeying the decree dated 17.6.1996 passed in civil suitNo.149 of 1993 and affirmed on 13.8.1996 in civil appeal No.65 of 1996. 2. The brief facts of the case are that claiming himself as owner in possession of land comprising in khasra No. 1086/308/1, measuring 0-00- 26 hectares, situated in village Behar, Illaqua Suranga, Tehsil Sarkaghat, District Mandi (hereinafter called the suit land) the decree holder filed a civil suit for permanent prohibitory injunction restraining the judgment debtors from interfering in his possession over the suit land. The suit was decreed by the Sub Judge, Sarkaghat on 17.6.1996. The appeal filed by the judgment debtor-petitioner against the decree and judgment of the Sub Judge, was dismissed by the District Judge on 13.10.1998. 3. Thereafter the decree holder filed execution petition No.79-X of 1998 complaining that about on month after the decree and judgment of the District Judge dated 13.10.1998, the judgment debtor started raising pillars over the suit land knowing fully well that he was restrained from making any construction thereon by the decree dated 17.6.1996 passed by the Sub Judge, Sarkaghat, which was affirmed on 13.10.1998 by the District Judge. Apprehending that the judgment debtors will put slab over the pillars raised by them, the decree holder prayed that the judgment debtors be sent to civil prison and their property be attached and sold to compel them to obey the decree passed against them and in the event of their completing the structure and raising pillars, the order for demolition thereof be also passed. Besides compensating him for the loss suffered by him. 4. The judgment debtors filed reply and took the stand that they had raised construction over their own land in khasra No. 1135/310/1 as per tatima issued to him after demarcation which was given in the presence of the decree holder. The copy of tatima was also filed along with reply. 5. 4. The judgment debtors filed reply and took the stand that they had raised construction over their own land in khasra No. 1135/310/1 as per tatima issued to him after demarcation which was given in the presence of the decree holder. The copy of tatima was also filed along with reply. 5. On the pleadings of the parties, the following issues were framed: 1. Whether the respondents have disobeyed the judgment and decree dated 17.6.1996 passed by this Court, as alleged? OPA 2. Relief. 6. The, decree holder appeared as PW1 and produced Patwari Nand Lal, PW2 and Field Kanungo Amar Singh, PW3, to prove tatima Ext.PA, which was prepared after demarcation held under the orders dated 12.5.2000 of Naib Tehsildar. Proving this tatima, Patwari Nand Lal, PW2, has stated that the judgment debtors have constructed a wall beyond the pillars over the land of the decree holder. In cross-examination he has explained that though the pillars were constructed by the judgment debtors in their own land, but later on, the wall was raised on the land of the decree holder. This witness was also produced by the judgment debtors as RW3 to prove tatima Ext. RW3/A, which was prepared as per demarcation held in November, 1998. Field Kanungo Amar Singh, PW3, has fully supported the Patwari Nand Lal, PW2, in respect of tatima ExtPA. In his cross-examination he has explained that some part of the building of the judgment debtors is on the land of the decree holder. 7. Field Kanungo Kanwar Singh, RW4 has proved tatima Ext.RW3/A and has explained in cross-examination that at the time the said tatima was prepared after demarcation, the judgment debtors had only raised pillars, which were on their own land. Besides producing Field Kanungo Kanwar Singh, RW4 and Patwari Nand Lal, RW3, the judgment debtor Rattan Singh has appeared as RW1 and also got recorded the statements of Prem Singh, PW2, son of Dhani Ram and Inder Singh, RW5, who had admitted that the decree holder is owner of Khasra No.308/1. 8. On the basis of this evidence, the sub Judge has held that the petitioner judgment debtor has disobeyed the decree and judgement dated 17.6.1996, but absolved the proforma respondents-judgment debtors in the absence of any evidence of disobedience against them. 8. On the basis of this evidence, the sub Judge has held that the petitioner judgment debtor has disobeyed the decree and judgement dated 17.6.1996, but absolved the proforma respondents-judgment debtors in the absence of any evidence of disobedience against them. Relying upon the statements of Nand Lal, Patwari and Field Kanungos Amar Singh and Kanwar Singh, the Sub Judge has held that from the tatima Ext. RW3/A which was prepared in November, 1998 and tatima Ext.PA which was prepared after about two years in May, 2000, it is proved on record that the petitioner judgment debtor has encroached upon the suit land by raising construction knowing fully well the decree dated 17.6.1996 of permanent prohibitory injunction restraining him from interfering in the suit land. The petitioner judgment debtor has assailed these findings in this revision petition. 9. This Court has heard the learned counsel for the parties and gone through the record. 10. Learned counsel appearing for the decree holder, relying upon the judgments of Supreme court in Major S.S. Khanna v. Brig. F.J. Dhillon, AIR 1964 Supreme court 497, Pandurang Dhondi Chougule & Ors. v. Maruti Hari Jadhav & Ors. AIR 1966 Supreme court 153 and The Managing Dirctor (MIG) Hindustan Aeronatutics Ltd. Balanagar, Hyderabad & Anr. v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 Supreme Court 76, has raised preliminary objection that this revision petition is not maintainable as there is no jurisdictional error. Learned counsel has urged that as per ratio of these judgments of the Supreme Court while exercising its jurisdiction under Section 116 C.P.C. this court is not competent to correct the errors of fact howsoever grave they may be or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. 11. In reply to this preliminary objection, the learned counsel for the petitioner judgment-debtor vehemently urged that the Executing Court has jurisdiction to pass order for detention of a person only when it is proved on record that the judgment debtor has wilfully failed to obey the decree. According to the learned counsel, from the facts and circumstances on record, willful disobedience of the decree dated 17.6.1996 is not made out. According to the learned counsel, from the facts and circumstances on record, willful disobedience of the decree dated 17.6.1996 is not made out. Therefore, the impugned order passed by the Executing Court amounts to illegality or material irregularity which can be set right in exercise of revisional jurisdiction. 12. In order to appreciate the submission of the learned counsel for the petitioner-judgement debtor, this Court will refer to some judgments wherein the word "willful disobedience" has been interpreted. In L. Hudson v. Official Liquidator of Dehra Dun Mossoorie Electric Tramway Co., AIR 1929 Allahabad 826, the learned Judges have held: “The adjective "willful" in willful acts or defaults has evidently been used as a description and not as a definition. The idea intended to be conveyed is that the default is occasioned by the exercise of volition or as the result of the non-exercise of volition or as the result of the non-exercise of will due to supine indifference, although the defaulter knew or was in a position to know that loss or harm was likely to result. The word does not necessarily suggest the idea of moral turpitude. We have also to eliminate the elements of accident or inadvertence or honest error of judgment. The default must be the result of deliberation or intent or be the consequence of a reckless omission. "Willful default" therefore is indicative of some misconduct in the transaction of business or in the discharge of duty by omitting to do something ether deliberately or by a reckless disregard of the fact whether the act or omisson was or was not a breach of duty." 13. In S.S. Roy v. State of Orissa & Ors. AIR 1960 Supreme Court 190, the learned Judges have held that for punishing a person for contempt of court the error must be a wilful error proceeding from improper or corrupt or dishonest motives. In Madras State Wakf Board v. Tajmul Hussain, AIR 1968 Madras 332, the learned Judges have observed in paragraph 5: " In certain statutory offences, where persons are prosecuted for violation of rules or conditions, what is required in the absence of any mens rea provided under the relevant provisions, is that such violation was conscious and deliberate. The word wilful, when used in statutes, connotes different concepts. In certain cases wilful may mean wantonly. The word wilful, when used in statutes, connotes different concepts. In certain cases wilful may mean wantonly. In certain other cases, it may mean intentionally, or deliberated and in other cases, it may merely mean consciously. 14. The judgment in Shivamurthy Mahalingappa Kuchanaur v. Dannam-madevi Cycle Mart, Rabakavi, A.I.R. 1987 Karnataka 26, is direct on Order 21 Rule 32 CPC, which lays down that before passing the order for detention of a person, the Court must satisfy itself that he had an opportunity of obeying the decree, yet has wilfully disobeyed it. 15. From the ratio of above judgments, it is clear that the word wilfully as used in the context of Order 21 Rule 32 CPC means consciously or intentionally or deliberately. Now the question arises whether from the facts and circumstances on record, wilful disobedience is made out or not. The judgment debtors in their reply to the application under Order 21 Rule 32 CPC have not denied the decree dated 17.6.1996 passed by the Sub Judge and the confirmation thereof on 13.10.1998 by the District Judge, whereby they were restrained from interfering in the land in dispute by raising construction or in any other manner, though strangely enough, the petitioner judgment-debtor while appearing as RW1 has shown his ignorance that his appeal against the decree dated 17.6.1996 stood dismissed. It is correct that before starting construction within a period of about one month from 13.10.1998 when his appeal was dismissed by the District Judge, the petitioner judgment-debtor took demarcation in which tatima Ext.RW3/A was prepared which shows that till then, i.e. November, 1998, he had raised pillars on his own land comprised in Khasra No. 1135/310/1 adjacent to the suit land, but from the tatima Ext.PA which was prepared in the demarcation held in May, 2000 read with the statements of Nand Lai Patwari and Field Kanungos Amar Singh and Kanwar Singh, it is clear that the petitioner judgment- debtor constructed a wall and made projection to the extent of 2 meters on the suit land. If after coming to know of his boundary in the demarcation held in November, 1998 in which tatima Ext.RW3/A was prepared, the petitioner judgment-debtor had raised the wall and made projection judgement-debtor had raised the wall and made projection over the land of the decree holder comprised in khasra No.l 140/1086/308/1 as shown in tatima Ext.PA, there remains no doubt that he did it knowingly, intentionally and in utter defiance which amounts to wilful disobedience of the decree dated 17.6.1996, as held by the Executing Court. Therefore, this Court does not find any illegality or material irregularity committed by the Executing Court in passing the impugned order and it does not call for any interference by this court in exercise of jurisdiction under Section 115 CPC. 16. In the result, the revision petition is dismissed having no merits.