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2014 DIGILAW 1044 (AP)

Thammineni Gandhi v. Mallela Venkateshwarlu

2014-08-21

A.V.SESHA SAI

body2014
Judgment This revision petition, filed under Article 227 of the Constitution of India, challenges the order dated 30.01.2014 passed by the Court of the Junior Civil Judge Kodad, partly allowing E.P.No.3 of 2010 in O.S.No.92 of 2000. 2. Heard Sri N. Narasimha Chary, learned counsel for the petitioners and Sri V. Raghu, learned counsel for the respondents, apart from perusing the material available on record. 3. The facts and circumstances, in nutshell, leading to the filing of the present revision petition are as under: The respondents instituted O.S.No.92 of 2000 on the file of the Court of the Junior Civil Judge, Kodad, against the petitioners for perpetual injunction to restrain the petitioners/JDrs from interfering with the peaceful possession and enjoyment of the 1st respondent-plaintiff in respect of the suit schedule agricultural N.S.P. dry land, admeasuring Ac.1.22 gts., in Sy.No.74/E, Patta No.779 of Thammarabandapalem Village, Kodad Mandal, Nalgonda District. The Court of the Junior Civil Judge, Kodad decreed the said suit on 26.07.2003. 4. Alleging violation of the said decree, and seeking arrest of the petitioners/defendants, the respondents filed E.P.No.3 of 2010 on the file of the Court of the Junior Civil Judge, Kodad. Resisting the said E.P. and the relief sought therein, the petitioners/JDrs filed a counter. The learned Junior Civil Judge, Kodad, by way of an order dated 30.01.2014, partly allowed E.P.No.3 of 2010, ordering detention of petitioners/JDrs 1 to 4 in civil prison for a period of two months each under Order 21 Rule 32 of C.P.C., while dismissing E.P. against Judgment Debtors 5 to 10. Aggrieved by the said order, the present civil revision petition has been filed. 5. Contentions of Sri K. Narasimha Chary, learned counsel for the petitioners. a) The order of the Court below is erroneous, contrary to law and opposed to the very spirit and object of the provisions of C.P.C. b) The execution of decree for perpetual injunction is not permissible under law and the only remedy for the decree holder is to file application to punish the judgment debtor by establishing positive evidence. c) The power to order arrest can be exercised only in the case of non-availability of property for attachment and the petitioners own properties adjacent to schedule properties in O.S.No.92 of 2000. c) The power to order arrest can be exercised only in the case of non-availability of property for attachment and the petitioners own properties adjacent to schedule properties in O.S.No.92 of 2000. d) The learned Judge failed to take into account that the 1st respondent failed in his attempt to establish his title, possession in O.S.No.88 of 2000 filed by the vendors of the petitioners against the 1st respondent and his wife. e) The rights of the petitioners cannot be disturbed unless the title deeds existing in their favour are set aside by a competent court. In support of his contentions and submissions the learned counsel for the petitioners places reliance on the judgments in Koganti Jagannada Rao @ Jaggala v. State of Andhra Pradesh and others ( 2014 (2) ALD 270 ) and Kedarnath Khetan v. Jainarain Ram Lundia and ors. (AIR 1954 PATNA 497). 6. Contentions of Sri V. Raghu, learned counsel for the respondent. a) The order impugned in the revision petition is in conformity with the provisions of C.P.C. b) There is neither illegality nor material irregularity in the impugned order, nor it suffers from any infirmity, as such the same is not amenable to the jurisdiction of this Court under Article 227 of the Constitution of India. c) Having suffered a decree for perpetual injunction and having allowed the same to become final, the petitioners/JDrs, can neither be permitted to canvas the contentions in the direction of frustrating the said decree in Execution Proceedings, nor can be allowed to violate the said decree by raising technicalities. 7. In the above back drop, now the issues, which this Court is called upon to answer in this revision petition filed under Article 227 of the Constitution of India, are – i) Whether the order impugned is in conformity with the provisions of the Code of Civil Procedure? and ii) Whether the impugned order warrants any correction by this Court under Article 227 of the Constitution of India? 8. The material available on record reveals that the suit O.S.No.92 of 2000, filed by the 1st respondent was decreed on 26.07.2003 by the Court of Junior Civil Judge, Kodad, granting perpetual injunction against the petitioners. and ii) Whether the impugned order warrants any correction by this Court under Article 227 of the Constitution of India? 8. The material available on record reveals that the suit O.S.No.92 of 2000, filed by the 1st respondent was decreed on 26.07.2003 by the Court of Junior Civil Judge, Kodad, granting perpetual injunction against the petitioners. Petitioners filed I.A.No.250 of 2004 to set aside the ex parte decree, which was dismissed on 16.08.2004 and the same was confirmed in C.M.A.No.15 of 2004 on the file of the Court of the II Additional District and Sessions Judge, Suryapet by virtue of the orders dated 27.07.2005. Therefore, the said decree became final. Complaining violation of the said decree, the respondent filed the present execution petition under the provisions of Order 21 Rule 32 of C.P.C., and sought arrest of the petitioners/JDrs. 9. As per the provisions of Order 21 Rule 32 of C.P.C., the decree in the matter of injunction, when violated or disobeyed, can be enforced by way of detention in civil prison. Therefore, the contention of the petitioner, touching the maintainability of the execution petition is neither sustainable nor tenable nor it can be countenanced. The pendency of O.S.No.18 of 2010 also would not ennure to the benefit of the petitioners nor can they be permitted to go into the merits of the decree passed in O.S.No.92 of 2000, which became final. The stand taken by the petitioners, that in view of the pendency of S.A.1143 of 2009 before this Court the respondent cannot be permitted to maintain the execution petition is also untenable. In the name of pendency of S.A.No.1143 of 2009 the petitioners cannot be permitted to violate the decree passed by the competent Civil Court when there is no order in the said Second Appeal. In fact, the learned Junior Civil Judge thoroughly and meticulously dealt with all the aspects and recorded findings at paragraphs 9 to 13 of the impugned order. 10. It is required to be noted that the ultimate endeavour of the Courts should be in the direction of safeguarding and upholding the majesty of the Courts and sanctity of the orders and decrees of the Courts from being invaded and flouted in the name of lame, feeble and unreasonable excuses and explanations and in the name of technicalities. 11. It is required to be noted that the ultimate endeavour of the Courts should be in the direction of safeguarding and upholding the majesty of the Courts and sanctity of the orders and decrees of the Courts from being invaded and flouted in the name of lame, feeble and unreasonable excuses and explanations and in the name of technicalities. 11. In the instant case, having suffered a decree and failed to assail the same, the petitioners are attempting to justify their action in the guise of the pendency of the suit filed by them for declaration and by raising various unsustainable and untenable contentions including those touching the merits of the suit, which in the considered opinion of this Court is impermissible. 12. With regard to the contention of the learned counsel for the petitioner that the decree holder ought to have sought for attachment of properties of the judgment debtors instead of seeking arrest, it is to be noted that the parameters for consideration while dealing with the execution petitions in money decrees and the parameters while dealing with the suits of this nature, are different. Having advanced the plea in the direction of justifying their action contrary to the decree, the petitioners cannot seek any indulgence of this Court under Article 226 of the Constitution of India in the absence of any jurisdictional error in the orders passed by the Court below. 13. Coming to the judgments cited by the petitioners, in the considered opinion of this Court, the same would not render any assistance to the petitioners for sustaining their action, in view of factual and circumstantial variations. The efforts of the Courts should also be in the direction of creating confidence to the people in the system and the same cannot be achieved without respect to rule of finality. 14. For the aforesaid reasons and having regard to the provisions of the Code of Civil Procedure, this court does not find any justification to meddle with the order passed by the Court below as the same does not suffer from any jurisdictional error. Accordingly, the Civil Revision Petition is dismissed. The learned counsel for the petitioners has prayed this Court to grant leave to file an appeal before the Hon'ble Supreme Court and to suspend the order for some time. Accordingly, the Civil Revision Petition is dismissed. The learned counsel for the petitioners has prayed this Court to grant leave to file an appeal before the Hon'ble Supreme Court and to suspend the order for some time. Keeping in view the nature of controversy and the request made by the learned counsel, the petitioners are granted leave and there shall be no detention of the petitioners for a period of one month. No order as to costs. As a sequel, Miscellaneous Petitions, if any, shall stand closed.