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2013 DIGILAW 2869 (MAD)

R. Jagan v. G. Chandrasekar

2013-08-06

K.RAVICHANDRA BAABU

body2013
Judgment : 1. This civil revision petition is filed by the judgment debtors/defendants 6 to 9 in O.S.No.4252 of 2004. They are aggrieved against the order passed in E.P.No.3454 of 2012 whereby the Executing Court allowed the application filed by the decree holder under Order 21 Rule 32 C.P.C. for arrest of the petitioners herein and detain them in civil prison for disobedience of the decree made in the above said suit. 2. Heard the learned counsel appearing for the petitioners and the respondent. 3. It is seen that the respondent herein filed O.S.No.4252 of 2004 on the file of the City Civil Court, Chennai against the petitioners herein and others seeking for permanent injunction to restrain the defendants from interfering with the plaintiff's administration of the temple and the peaceful performance of Poojas and celebrating Aadi festival on 27.08.2004 and on subsequent dates. After contest, the said suit came to be decreed on 26.06.2008. The decree reads as follows: "1. That the defendants or their men are hereby restrained by way of permanent injunction from interfering in administering the temple, interfering with the peaceful performance of the Poojas and celebrating Adi Festival into the temple on 27.08.2004 and subsequent dates. 2. that the defendants do pay plaintiff a sum of Rs.1185.50 (Rupees One thousand one hundred eighty five and paise fifty only) towards the costs of this suit as taxed and noted below." 4. Though the decree was granted by the trial court in the month of June 2008, the decree holder filed Execution petition in the year 2012 by alleging that the petitioners herein have violated the said decree. The Execution petition filed by the decree holder, if perused, does not disclose as to how and in what manner the decree is violated except by stating in serial No.12 of the petition that an order of arrest of the judgment debtors 1, 2 and 4 for disobedience of the decree is to be made. The said application was resisted by the petitioners herein by filing a separate counter affidavit by specifically stating that they have not violated the said decree and consequently, the E.P. is not maintainable. The court below allowed the application by holding that the decree holder proved the violation by marking Exs.P2, P3 and P6. The said application was resisted by the petitioners herein by filing a separate counter affidavit by specifically stating that they have not violated the said decree and consequently, the E.P. is not maintainable. The court below allowed the application by holding that the decree holder proved the violation by marking Exs.P2, P3 and P6. Except referring so, there is absolutely no discussion by the Executing Court with regard to the nature of violation and the manner in which such violation was proved by the decree holder. Even a bare perusal of Exs.P2, P3 and P6 would show that they are referable to the period of 2009 and 2008. Certainly, mere marking of those documents without examining any person to prove the same is not sufficient to hold that the decree holder has proved the violation. Admittedly, both sides have not let in any oral evidence. Thus, the finding rendered by the court below is without any discussion and without going into the rival contention of the parties. 5. At any event, as it is specifically stated by the petitioners in the respective counter affidavits filed before the Executing court that they are not violating the decree and the same contention is reiterated by the learned counsel appearing for them before this Court, the order passed by the court below cannot be sustained as the same was not supported by any justifiable reasons and findings. Consequently, the order passed by the court below is set aside by further recording the undertaking of the petitioners that they will not violate the decree in any manner. It is made clear that if there is any violation in future, it is open to the decree holder to approach the Execution Court to file appropriate application seeking for execution of the said decree. With this observation, the civil revision petition is allowed. No costs. The connected miscellaneous petition is closed.