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2014 DIGILAW 833 (AP)

Malle Ranga Reddy v. Thirunagaru Purushotham

2014-07-08

A.V.SESHA SAI

body2014
Judgment This revision, filed under Section 115 of the Code of Civil Procedure by the judgment-debtors, challenges the order dated 24.03.2014 passed by the Court of Junior Civil Judge, Nalgonda in E.P.No.19 of 2010 in O.S.No.273 of 1998. Heard Sri T.Srikanth Reddy, learned counsel for the petitioners and Sri Manik Rao, learned counsel for the respondent, apart from perusing the material available on record. The respondent herein instituted a suit, being O.S.No.273 of 1998, for injunction against the petitioners herein. The said suit was referred to the Lok Adalat and the Lok Adalat Bench at Nalgonda passed an award dated 23.09.2000, which reads as under: "Both the Plaintiff and Defendants 1 to 3 are present. They have settled the matter. The Defendants have no objection to decree the suit land in Sy.No.199 measuring 13 guntas were situated at Kotaiahgudem H/o.Udathalapalli Village of Chandur Mandal, Nalgonda bounded by North: Way after the land of M.Anjireddy and others. South: The land of Plaintiff after road, East: Land of Plaintiff, West: Land of D.Ramesh and brothers. Accordingly in view of the compromise the suit is decreed in favour of plaintiff. The plaintiff is entitled for refund court fee paid by him as per the rules." In the said suit, O.S.No.273 of 1998, the plaintiff/ respondent herein filed E.P.No.19 of 2010 in the month of August, 2010 seeking to send the petitioners herein to civil prison under Order 21 Rule 32 r/w Section 57 of the Code of Civil Procedure on the ground that they violated the decree in O.S.No.273 of 1998. Resisting the said execution petition, the judgment debtors/petitioners herein filed a counter. In support of his case, the decree holder/respondent herein examined himself as P.W.1 and also examined one Sri Parshaganit Babu as P.W.2. On the other hand, the 2nd Judgment debtor/2nd petitioner herein examined himself as R.W.1 and also examined R.Ws.2 and 3 on their behalf. The learned Junior Civil Judge, Nalgonda, by virtue of an order dated 24.03.2014, allowed E.P.No.19 of 2010, directing the J.Drs. to be sent to civil imprisonment for not less than six months. Calling in question, the validity and the legal acceptability of the said order, the present Civil Revision Petition under Section 115 of the Code of Civil Procedure has been filed. A counter affidavit is filed on behalf of the plaintiff/respondent herein before this Court, resisting the revision. to be sent to civil imprisonment for not less than six months. Calling in question, the validity and the legal acceptability of the said order, the present Civil Revision Petition under Section 115 of the Code of Civil Procedure has been filed. A counter affidavit is filed on behalf of the plaintiff/respondent herein before this Court, resisting the revision. It is contended by the learned counsel for the revision petitioners that the order passed by the Court below is erroneous, contrary to law and opposed to the provisions of Order 21 Rule 32 of the Code of Civil Procedure. It is further contended that the order passed by the learned Junior Civil Judge is full of assumptions and presumptions and the same cannot be a ground to order imprisonment. It is further argued by the learned counsel for the petitioners that in view of the contradictions in the evidence of P.Ws.1 & 2, the learned Junior Civil Judge ought to have rejected the applications filed by the petitioners herein. It is also contended by the learned counsel that the learned Junior Civil Judge placed the burden on the judgment-debtors instead on the decree-holder to prove his case. In support of his submissions and contentions, the learned counsel for the petitioners places reliance on the judgment of this Court in the case of Koya Ranga Reddy and others v. Koya Narayana Reddy and others ( 2007(3) ALT 689 ). Per contra, it is vehemently argued by the learned counsel for the decree holder/respondent herein that the order passed by the learned Junior Civil Judge is strictly in conformity with the provisions of Order 21 Rule 32 of the Code of Civil Procedure. It is further contended that in view of the conduct of the judgment debtors/petitioners herein, the leaned Junior Civil Judge is correct in ordering imprisonment. It is further argued by the learned counsel that as the impugned order is supported by valid, cogent and convincing reasons, the same does not warrant any interference or indulgence of this Court in exercise of the powers under Section 115 of the Code of Civil Procedure. It is further argued by the learned counsel that as the impugned order is supported by valid, cogent and convincing reasons, the same does not warrant any interference or indulgence of this Court in exercise of the powers under Section 115 of the Code of Civil Procedure. In the light of the above background, now the question which this Court is called upon to answer is, whether the order passed by the Court of Junior Civil Judge, Nalgonda is in accordance with the provisions of Order 21 Rule 32 of the Code of Civil Procedure and whether the same requires any correction by this Court under Section 115 of the Code of Civil Procedure. The material available on record manifestly discloses that the suit instituted by the respondent herein was referred to the Lok Adalat and the Lok Adalat passed an award dated 23.09.2000. The schedule property in the present case is the land admeasuring Ac.0.13 gts situated in Sy.No.199/E, Kottaigudem village, H/o.Udathalapally village, Chandur Mandal, Nalgonda District. In the E.P. instituted by the decree holder/ respondent herein, the decree-holder stated that when the decree-holder was ploughing the execution petition schedule land on 10.08.2010, the judgment debtors/petitioners herein, with a mala fide intention, colluded together and tried to interfere with the possession of the decree-holder despite existence of a decree for perpetual injunction against them. The decree-holder also stated in the said execution petition that he rushed to Chandur Police Station and filed a written complaint on the same day, but the police did not initiate legal action and insisted upon the decree-holder to obtain police protection order from the Court. In the counter affidavit filed by the judgment-debtors, they stated that they never interfered with the possession of the decree-holder and that after settlement by the Lok Adalat on 23.09.2000, the decree-holder sold his land in part to one Ganta Dasaradha and he also constructed a house in the said land and that the decree holder also raised two rooms and poultry shed. They further stated that under the colour of police protection, the decree-holder intends to grab their lands in Sy.No.198 of Udathalapally village. They further stated that under the colour of police protection, the decree-holder intends to grab their lands in Sy.No.198 of Udathalapally village. The provision of law which is germane and relevant for the purpose of adjudication of the issue in the present revision is Order 21 Rule 32(1) of the Code of Civil Procedure, which reads as under: "O.21 R.32(1): Decree for specific performance, for restitution of conjugal rights, or for an injunction: Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison or by the attachment of his property, or by both." A reading of the above provision of law makes it very much manifest that the said provision is a penal one. As such, the provisions of the said Rule are required to be adhered to meticulously and scrupulously while depriving an individual of his liberty. In the instant case, even though in the execution petition, it was mentioned that the decree-holder made a written complaint to the police immediately after the incident, curiously during the course of cross-examination, the decree-holder categorically deposed that he did not complain against the judgment-debtors for their interference in the schedule land to the police. Another significant aspect which needs mention at this juncture is that, during the course of cross-examination, P.W.2 deposed in clear terms that the E.P. schedule property is not cultivated this year, and prior to five years, E.P. schedule property was under the cultivation. P.W.2 also stated that he is working as an agricultural coolie under the decree-holder. Therefore, these contradictions in the evidence of P.Ws.1 & 2 are sufficient to discard their evidence. Coming to the impugned order passed by the learned Junior Civil Judge, the learned Junior Civil Judge for the purpose of adjudication of the issue before the Court had thrown burden on the judgment-debtors completely. Therefore, these contradictions in the evidence of P.Ws.1 & 2 are sufficient to discard their evidence. Coming to the impugned order passed by the learned Junior Civil Judge, the learned Junior Civil Judge for the purpose of adjudication of the issue before the Court had thrown burden on the judgment-debtors completely. As noted above, since the relevant provisions are penal in nature, the material available on record is required to be scanned and thoroughly analysed for the purpose of arriving at a conclusion. There is also no room for any assumptions or presumptions while dealing with the cases of this nature, unless strong foundation is laid and case is made out by the person applying for, the order of arrest cannot be made. In the considered opinion of this Court, the reasons assigned by the Court below in the impugned order, by any stretch of imagination, cannot be sustained. At this juncture, it would be appropriate to refer to the judgment of this Court in Koya Ranga Reddy (1 supra) case. In the said judgment, at paragraph7, this Court has held as under: "Two facts are necessary to be proved by the decree-holder: In a way, they are two facets of the same phenomenon. The first is that the judgment-debtor must have an opportunity to obey the decree, and the second is that despite such an opportunity, he had willfully failed to obey it. To state in different terms, mere failure of a judgment-debtor to obey the decree, when he did not have an opportunity to do so; cannot constitute a ground to order his detention in civil prison. Similarly, if the failure is not willful, the Executing Court cannot direct his detention, notwithstanding that the judgment-debtor had an opportunity to obey the decree. Both the facts must be proved. By their very nature, they need to be established through sufficient evidence, to the judgment-debtor remained, or was set ex parte, does not relieve the decree-holder, of his obligation and burden, to prove the ingredients of Rule 32." Therefore, unless the decree-holder, with cogent and convincing evidence, proves the existence of the ingredients of Rule 32 of Order 21 of the Code of Civil Procedure, the order of arrest cannot be made. In view of the above reasons, the impugned order, passed by the learned Junior Civil Judge, in the opinion of this Court, is neither sustainable nor tenable. In view of the above reasons, the impugned order, passed by the learned Junior Civil Judge, in the opinion of this Court, is neither sustainable nor tenable. For the aforesaid reasons, the present civil revision petition is allowed, setting aside the order dated 24.03.2014 passed in E.P.No.19 of 2010 in O.S.No.273 of 1998 on the file of the Court of Junior Civil Judge, Nalgonda. No order as to costs. As a sequel, the miscellaneous petitions, if any pending in this revision, shall stand closed.