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2014 DIGILAW 409 (KAR)

Ramaraju v. Indiramma

2014-03-26

N.KUMAR

body2014
ORDER : N. Kumar, J. 1. The judgment-debtor has preferred this writ petition challenging the order passed by the Executing Court directing his arrest and imprisonment for two months in civil prison for disobeying permanent injunction decree. 2. The decree in O.S. No. 172/1999 restraining the defendants including the petitioner herein from interfering with the plaintiff/respondent herein's possession and enjoyment of the schedule property was decreed after contest and it has attained finality. The defendants, in utter disregard of the decree, interfered with the plaintiffs possession over the schedule property as such, the plaintiff filed Ex. P. No. 15/2002 seeking arrest and detention of the petitioner herein in civil prison. After enquiry, the executing Court passed an order directing detention of the petitioner in civil prison for a period of two months. The said order was challenged in W.P. No. 41793/2003 but no interim stay was granted. By the time W.P. came up for hearing, two months detention period was over and therefore it was dismissed as having become infructuous. 3. In the meanwhile, the petitioner herein who is the 2nd defendant in O.S. 172/99 filed O.S. No. 234/2004 against the decree-holder for partition and separate possession of his 5/18th share in the schedule property. After contest O.S. 234/2004 was dismissed and regular appeal by the petitioner herein in R.A. No. 69/2007 was also dismissed. However, R.S.A. filed by him against dismissal of R.A. is pending consideration before this Court and no interim order is passed in his favour. 4. Alleging that the petitioner herein, after release from civil prison, once again disobeyed the decree for permanent injunction by interfering with his possession, the respondent herein filed yet another execution petition in Ex. No. 59/2009 seeking his arrest and detention in civil prison. The petitioner herein who is the second judgment-debtor, on receipt of notice, entered appearance and filed objections contending that a second execution petition is not maintainable, as R.S.A. preferred by him is pending and the decree holder was never in possession of the property. 5. Executing Court after considering the objections and also hearing the parties came to the conclusion that it is not open for the judgment-debtor to contend that the decree holder is not in possession in view of judgment and decree in O.S. No. 172/1999 where the decree holder is held to be in possession of the property. 5. Executing Court after considering the objections and also hearing the parties came to the conclusion that it is not open for the judgment-debtor to contend that the decree holder is not in possession in view of judgment and decree in O.S. No. 172/1999 where the decree holder is held to be in possession of the property. When the judgment-debtor contends that he is in possession, the interference alleged by the decree-holder stands established and therefore overruling all the objections, the Executing Court ordered for detention of judgment debtor/petitioner for two months in civil prison and warrant is issued for his arrest. Aggrieved by this, the judgment-debtor has preferred this writ petition. 6. This Court while entertaining the writ petition granted an order of stay of operation of the impugned order subject to deposit of Rs. 10,000/- by the petitioner herein before this Court and he has accordingly, deposited the said amount. 7. Learned Counsel for the petitioner/judgment-debtor assailing the impugned order contends that when once an execution petition was filed complaining of disobedience and an order of arrest was passed and the judgment debtor was detained in civil prison for two months, the decree for permanent injunction passed in O.S. 172/99 stood satisfied and therefore second execution petition for executing the same decree is not maintainable more so when the R.S.A. is pending consideration. The Executing Court ought not to have passed the impugned order. He asserts that it is the judgment-debtor who is in possession of the property and not the decree-holder as such, the question of disobedience on the part of judgment debtor does not arise. 8. Per contra, the learned Counsel for the decree-holder fully supported the impugned order. 9. In the light of the above, the following point arises for consideration in this writ petition: Does the decree for permanent injunction stand fully satisfied when once the judgment-debtor is arrested and detained in civil prison in an execution proceeding initiated for violating it? 10. A plain reading of Order XXI rule 32 of C.P.C. shows that where a party against whom decree for an injunction has been passed, willfully failed to obey it even when he had an opportunity of obeying the same, the decree may be enforced by his detention in civil prison or by attachment of his property or by both. 10. A plain reading of Order XXI rule 32 of C.P.C. shows that where a party against whom decree for an injunction has been passed, willfully failed to obey it even when he had an opportunity of obeying the same, the decree may be enforced by his detention in civil prison or by attachment of his property or by both. If his property is attached and remains in force for a period of six months, and even then the decree is not obeyed, the attached property may be sold and out of the proceeds of sale, Court may award to the decree-holder such compensation as it thinks fit. In addition to attaching the property of the judgment-debtor, if a decree for injunction has not been obeyed, the Court may, in lieu of, or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable. 11. The two relevant Articles of the Limitation Act which need to be noticed is Article 135 and 136. They read as under: 135. For the enforcement of a decree granting a mandatory injunction 136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. Three years Twelve years The date of the decree or where a date is fixed for performance, such date [When] the decree or order become enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods in respect of which execution is sought, takes place : Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. Underlining by me 12. Article 135 is applicable only to the enforcement of a decree for mandatory injunction and not to the enforcement of a decree for a prohibitory injunction. As regards a decree for perpetual injunction (prohibitory injunction) is concerned, the proviso to Article 136 makes it clear that such a decree shall not be subject to any period of limitation. Therefore, a decree for perpetual injunction is a decree in perpetuity. As regards a decree for perpetual injunction (prohibitory injunction) is concerned, the proviso to Article 136 makes it clear that such a decree shall not be subject to any period of limitation. Therefore, a decree for perpetual injunction is a decree in perpetuity. Whenever a decree for permanent injunction is disobeyed, it is open to the decree holder to initiate execution proceedings and the judgment debtor can be detained in civil prison. Such a detention cannot be forever. The discretion is vested in the Court to detain a judgment debtor in civil prison for a particular period of time only with a view to compel the judgment debtor to obey the decree. Therefore, when an order of detention of judgment debtor is passed for a particular period for violating or disobeying decree for permanent injunction and the judgment debtor is detained for that period, the decree for perpetual injunction does not get satisfied or cease to exist after the expiry of the period of such detention. If the judgment debtor, after release from civil prison, continues to disobey the decree for permanent injunction, then the decree holder may sue him out once again by initiating execution proceedings. Thus, the decree for permanent injunction is perpetual in nature and it can be enforced as and when there is disobedience and the Limitation Act is not attracted to such decrees. 13. Therefore, there is no merit in the contentions of the petitioner herein with regard to maintainability of a second execution proceeding in respect of a decree for permanent injunction. Further, from the very argument canvassed by the petitioner herein that it is he who is in possession of the property and not the plaintiff only means that the disobedience continues. Therefore, the Executing Court is justified in passing the order directing the judgment debtor's detention in civil prison once again. 14. Mere pendency of R.S.A. before this Court would not come in the way of executing the decree. On the decree holder depositing the subsistence allowance, the executing Court has issued warrant for arresting the judgment debtor. The same does not call for any interference as no illegality is committed by the executing court in passing such an order. 15. In the result I pass the following. ORDER (a) The writ petition is dismissed. (b) Out of the amount of Rs. The same does not call for any interference as no illegality is committed by the executing court in passing such an order. 15. In the result I pass the following. ORDER (a) The writ petition is dismissed. (b) Out of the amount of Rs. 10,000/- deposited by the judgment debtor pursuant to the interim order passed by this court, a sum of Rs. 5,000/- shall be paid to the decree holder towards cost of this petition. (c) The balance of Rs. 5,000/- shall be refunded to the judgment-debtor.