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2015 DIGILAW 439 (UTT)

Lata Singh v. Anil Tyagi

2015-09-09

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. By means of present Civil Revision, the revisionist seeks to set aside the order dated 23.05.2015, passed by learned 1st Additional Civil Judge (S.D.), Dehradun, in Misc. Case No. 229 of 2014, Smt. Lata Singh v. Anil Tyagi, whereby the objections filed by the revisionist under Section 47 C.P.C., were dismissed. 2. The main grounds taken up by the revisionist in the present Civil Revision are as follows: (i) Learned court below failed to consider that at the most decree of perpetuation injunction was passed in favour of respondent and execution petition was not maintainable, as the most Rule 32 Order 21 C.P.C. could have been invoked only after satisfying the existence of grounds for invoking said provision. (ii) Court below failed to consider that there is no averment in the execution petition about any violation of decree of injunction rendering the revisionist to be punished as per Rule 32 Order 21 C.P.C. In the absence of any averment in this regard execution petition itself was not legally maintainable. (iii) Learned court below lost sight of the fact that review application for reviewing judgment dated 19.03.2013 and decree passed in First Appeal no. 15 of 2010 was filed by revision applicant before this Hon'ble Court in which respondent was granted time to file objections. As such during pendency of review executing court ought not to have proceeded further and should have waited for decision of review. (iv) Learned court below failed to consider that apart from the other grounds raised in review, question of authority of Avas Vikas Parishad to execute sale-deed in favour of respondent after 09.11.2000 in view of provisions of U.P. Reorganization Act, 2000, was raised and is yet to be adjudicated, as such objections filed by revisionist ought not to have been dismissed. 3. The suit filed by Smt. Lata Singh, judgment debtor revisionist, against U.P. Awas and Vikas Parishad, Executive Engineer, Commissioner, U.P. Awas and Vikas Parishad and Anil Tyagi was dismissed by learned 3rd Additional Civil Judge, Dehradun vide judgment and decree dated 14.10.2009. Counter claim filed by the defendant no. 4 Anil Tyagi was decreed and the plaintiff (Judgment debtor) /revisionist herein, was directed, by a decree of permanent prohibitory injunction, refraining from interfering in the suit property mentioned at the foot of the counter claim. Finding in the counter claim was challenged before this Court. Counter claim filed by the defendant no. 4 Anil Tyagi was decreed and the plaintiff (Judgment debtor) /revisionist herein, was directed, by a decree of permanent prohibitory injunction, refraining from interfering in the suit property mentioned at the foot of the counter claim. Finding in the counter claim was challenged before this Court. First Appeal No. 15 of 2010 was dismissed on 19th March, 2013. S.L.P. was preferred against the same before the Hon'ble Apex Court, which was, latter on, withdrawn with liberty to file review petition. The review petition thus filed on behalf of the judgment-debtor has also been dismissed by this Court vide order dated 4th September, 2015. 4. The allegation against the judgment debtor /revisionist is that she has displayed by a painting on her wall, which is adjacent to the disputed land, indicating by an arrow that the adjacent plot (suit property of the counter claim of defendant no. 4) is a disputed property and a case thereto is pending before the Court. 5. The sole question for determination of this Court is whether the judgment debtor has committed breach of injunction order or not? 6. It is the submission of learned counsel for the revisionist that the Court below failed to consider that the decree of perpetual injunction was passed in favour of the respondent and the execution petition was not maintainable. At the most, Order 21 Rule 32 C.P.C. could have been invoked but only after satisfying the existence of grounds for invoking the said provisions. It is also submitted that where the party against whom a decree for an injunction has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree maybe enforced, in the case of a decree for an injunction by his detention in the civil prison or by the attachment of his property, or by both. Learned counsel for the revisionist forcefully argued that the judgment debtor (revisionist) has not willfully disobeyed the decree for injunction. Learned counsel also submitted that the judgment debtor has not interfered with the injunction decree granted in favour of defendant no.4. 7. Learned counsel for the revisionist referred to a decision of Hon'ble Madras High Court Datchinamoorthy v. Ravichandran, reported in [2011] 2 LW 393. Para 11 of the judgment is as follows: "11. Learned counsel also submitted that the judgment debtor has not interfered with the injunction decree granted in favour of defendant no.4. 7. Learned counsel for the revisionist referred to a decision of Hon'ble Madras High Court Datchinamoorthy v. Ravichandran, reported in [2011] 2 LW 393. Para 11 of the judgment is as follows: "11. It is to be noted that Order 21 Rule 32 speaks of the decree for specific performance for restitution of conjugal rights or for an injunction. The Executing Court has to see that before directing execution to issue under Rule 32 of Order 21 of the Code of Civil Procedure is whether an individual bound by the decree has had an opportunity of obeying the decree or injunction and has willfully failed to obey it. If the party has had the opportunity and has willfully failed to obey the decree, the Court may order the execution to issue under this rule without providing him any further opportunity, and it is not obligatory upon the Court in such a case to serve a notice upon the party calling upon him to obey the decree or injunction as per the decision in Durga Das v. Dewraj reported in (1906) 33 Cal 306." 8. The judgment rendered by Hon'ble Allahabad High Court in Ram Autar v. Kaushal Kishore, reported in AIR 1965 All 44 has also been referred to in para 13 of Hon'ble Madras High Court Datchinamoorthy v. Ravichandran's case (supra). Para 13 of the judgment is as follows: "13. This Court worth recalls the decision in Ram Autar v. Kaushal Kishore reported in AIR 1965 All 44 followed in Ram Nath v. Tapesara reported in AIR 1985 All 26 , wherein it is held that 'if there is doubt in the mind of a party as to the true scope of the injunction which arises because of the vagueness of the terms of the order, it cannot be said that he has willfully disobeyed the injunction." 9. Learned counsel for the revisionist further referred to a decision of Hon'ble Allahabad High Court Ram Nath v. Tepesara, rendered in [1985] 0 AIR(All) 26. Para 3 of the judgment reads as follows: "3. Learned counsel for the appellant contended that the appellate Court has erroneously held that judgment-debtors had not willfully disobeyed the compromise decree passed by the Court in suit No. 87 of 1933. Para 3 of the judgment reads as follows: "3. Learned counsel for the appellant contended that the appellate Court has erroneously held that judgment-debtors had not willfully disobeyed the compromise decree passed by the Court in suit No. 87 of 1933. The question that requires determination in the present case is whether the judgment-debtors willfully failed to obey the decree of the Court. Order 21, Rule 32 CPC provides that where the party against whom a decree for specific performance of contract or for restitution of conjugal rights or for injunction has been passed has had an opportunity of obeying the decree and has willfully failed to obey it the decree may be enforced for specific performance of contract or for conjugal rights by detention in civil prison or by attachment of his property or by both. A perusal of above provision shows that mere breach of the terms of decree by the judgment-debtors is not enough. They must have willfully disobeyed the direction contained in the decree. The word "willful" has not been defined. "Willful failure" is a legal term evidently used as a description and not as a definition. "Willful failure" means want of bona fide. In Ram Autar V. Kaushal Kishore, AIR 1965 All 44 willful disobedience of decree for injunction by party bound by it is necessary to exercise jurisdiction under the rule. The jurisdiction conferred under Order 21, Rule 32 CPC can be exercised only when party against whom an injunction has been passed willfully failed to obey it. The Court shall not grant relief unless there is willful failure to obey the decree. The appellate Court has recorded a finding that the judgment-debtors has not willfully disobeyed the compromise decree passed in the year 1933. The objectors in their objection under Section 47 CPC stated that the house of decree-holder appellant had fallen down 20 years back. The Commissioner in his report (paper No. 11 Gha) reported that the house of decree-holder appellant is lying in Khandhar. Northern wall of decree holder's house has been partly dismantled and partly fallen down and only doors and windows remain there. In fact there is open sky above the floor towards the south of the alleged doors and windows. The oral evidence of decree holder appellant that the northern portion of the house fell down about 2 years back without any corroboration was found unworthy of reliance. In fact there is open sky above the floor towards the south of the alleged doors and windows. The oral evidence of decree holder appellant that the northern portion of the house fell down about 2 years back without any corroboration was found unworthy of reliance. The appellate Court found that the version of judgment-debtors that the Khandhar is lying for the last 20 years appears to be natural and probable. These findings recorded by the appellate Court are correct and have not been shown to be vitiated by any legal infirmity. After the house has fallen down there was no question of obstruction of light and air of the windows and doors of the house which were in existence before 20 years. The decree-holder appellant has allowed the Khandhar to remain for the last 20 years and in such circumstances if the judgment-debtors constructed wall on the southern portion of their house it cannot be held to be willful failure to comply with the decree passed in the suit of 1933. The decree-holder neither made any effort to raise construction over the land where the house had fallen down nor he ever objected to the judgment-debtors, raising of the wall on the southern side of the house. The finding recorded by the appellate Court that there was no willful failure on the part of judgment-debtors in raising the construction is correct." 10. Learned counsel for the revisionist also referred to a decision of Hon'ble Kerla High Court Narayani v. Thankappan, reported in [1991] 2 KLT 704. Para 9 of the judgment reads as follows: "9. But Order 21 Rule 32 is not intended to punish a contumacious party. The said rule can be invoked only for enforcement of a decree. Detention in civil prison or attachment of property can be resorted to only so long as the decree stands unenforced. Once a decree has been enforced, or complied with the judgment debtor is not liable to be detained in prison and his property is not liable to be attached under Rule 32 (1). During detention of judgment debtor in civil prison for enforcement of a decree it is reported that the decree has since been enforced the judgment debtor is entitled to be released forthwith. For what took place in the past he cannot be retained in prison for any further period under Order 21 Rule 32. During detention of judgment debtor in civil prison for enforcement of a decree it is reported that the decree has since been enforced the judgment debtor is entitled to be released forthwith. For what took place in the past he cannot be retained in prison for any further period under Order 21 Rule 32. If violation or disobedience of a decree for injunction is sought to be visited with punitive consequences, the only remedy available in law, as matters stand at present, is to initiate proceedings under the law of Contempt of Courts against the person concerned. There is no other provision for imposing punishment for disobedience of a term or command contained in a decree for injunction prohibitory or mandatory." 11. Learned counsel for the revisionist also referred a decision of Hon'ble Jharkhand High Court, in Nani Gopal Goswami v. Devendra Nath Goswami, reported in [2011] 0 Supreme (Jhk) 102. Para 12 of the judgment reads as follows: "12. In all these cases, the facts are altogether different. In the Bombay case, Yashodabai Ganesh, Naik Gaunekar (supra), there was successive violation of a decree of injunction, despite the judgment-debtor suffered civil imprisonment and therefore, the court was of the view that since the default on the part of the judgment-debtor was willful, deliberate and intentional, such a decree can only be satisfied by obeying it and in the event, of its disobedience, it can always be put into execution at any time to prevent breach or to prevent apprehended breach, subject to the law of limitation. In the instant execution application, there is no whisper about the interference in possession, but on the contrary, simplicitor a prayer for execution of decree has been made. In such litigation, unless the decree of permanent injunction on Plot No. 2018 has been violated deliberately, willfully by the judgment-debtor, no execution can be made. There is nothing to support the contention that the declaratory decree is being violated by any of the judgment debtors and, therefore, the court below made an observation that there is no such provision for executing a declaratory decree." 12. Learned counsel for the revisionist wants this Court to consider para 8 of the decision rendered by Hon'ble Karnataka High Court, in Corporation of City Belgium v. Vijayalaxmi Narayan Wandre, reported in [1999] 0 Supreme (Kar) 198, which reads as follows: "8. Learned counsel for the revisionist wants this Court to consider para 8 of the decision rendered by Hon'ble Karnataka High Court, in Corporation of City Belgium v. Vijayalaxmi Narayan Wandre, reported in [1999] 0 Supreme (Kar) 198, which reads as follows: "8. There appears much substance in the contention of the learned Counsel for the petitioner. Order 21, Rule 32 (1) reads as under: Rule rule 32 (1). Where the party against whom a decree for 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 decree for.restitution of conjugal rights by the attachment of his property or, in the case of a decree of 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. The sine qua non for exercise of jurisdiction under Rule 32 (1) is establishing of fact that the judgment-debtor has had an opportunity of obeying the decree and has willfully failed to obey it". This is a jurisdictional fact which has to be established, before the Court would proceed to consider the merits of the case and questions involved. This question has to be determined keeping in view the obligation of the Corporation towards the public to make supply of the water and in performing that job, it had to consider whether that public job could be performed in such a manner that decree would also be obeyed, and public job would also be performed. If for putting pipeline on the road the labourers put the soil dug from the land on the plaintiff's land while making drain, and whether the labourers put the soil with full knowledge of the decree and whether it was possible to put the soil at any other place for the time being, these are the material considerations which should affect the mind of the court whether the revision petitioner had an opportunity to obey the decree and if he had an opportunity of obeying the decree, but willfully committed breach of the decree. This jurisdictional fact not having been decided in the light of the law contained in Rule 32 and sine qua non condition not having been fulfilled, in my opinion, the Court below could not pass an order of attachment or of imprisonment against the petitioner. When I so opine, I find support for my view from the decision of the Hon'ble Allahabad High Court in the case of Ram Avtar v. Kaushal Kishore, where Hon'ble Mr. Justice R.S. Pathak, the then Judge of the Allahabad High Court, at page 45, has been pleased to lay down as under: 'The jurisdiction conferred under Order 21, Rule 32 of the Code can be exercised only where a party against whom an injunction has been passed has willfully failed to obey it.' This sine qua non for exercise of jurisdiction under Rule 32, that whether there is willful default of the decree of injunction and if it is not and unless it is shown that the party had an opportunity for not disobeying the order and had disobeyed." [Emphasis supplied] 13. It is settled law that the Executing Court cannot go beyond a decree, as has been held by Hon'ble Jharkhand High Court in para 6 of the judgment in Kewali Devi v. Smt. Sumati Devi, reported in [2010] 0 Supreme (Jhk) 481, which reads as follows: "6. Thus, from perusal of relief claimed in the title suit it is clear that the petitioner/decree holder had prayed for declaration of title and confirmation of possession over the suit land described in Schedule A to the plaint. The learned sub judge-V Hazaribagh on adjudication, came to the conclusion that the petitioners/decree holders are in possession of the land, therefore he confirmed the said possession as prayed by the petitioner/decree holder, but surprisingly in the instant case petitioner/decree holder prayed that judgment debtors be ejected from the suit property mentioned in Schedule 'A' to the plaint and thereafter khas possession of the same be given to them. It is well settled that the execution court cannot go behind the decree. If there is no decree directing the defendant/judgment debtor to deliver possession of the sit property the executing court has no power to pass any order of ejectment against judgment debtor. It is well settled that the execution court cannot go behind the decree. If there is no decree directing the defendant/judgment debtor to deliver possession of the sit property the executing court has no power to pass any order of ejectment against judgment debtor. Thus, I find that learned court below rightly come to the conclusion that the prayer made in the execution application is beyond the decree, therefore, same cannot be granted in this case. I find no illegality in the aforesaid finding of the court below." 14. It is admitted fact that the judgment debtor has painted in his wall that the adjacent plot in respect of which the decree has been obtained by defendant no. 4, is under litigation and is disputed. 15. Learned Executing Court, by a detailed and reasoned order, which was passed on 23.05.2015, dismissed the objections raised by the judgment debtor. There is no infirmity in the said order. No interference is called for in the same. The facts of the cases, which are placed by learned counsel for the revisionist before this Court, are distinguishable from the facts of the instant case. In fact, the objections raised by the judgment debtor before the Executing Court under Section 47 C.P.C., were not maintainable. Sub-section (1) of Section 47 C.P.C. says that all the questions arising between the parties to the suit in which the decree was passed, or from their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. It appears that the judgment-debtor moved objection under Section 47 C.P.C. against the Execution Petition. Only for the sake of making the same, inasmuch as, all the questions arising between the parties to the suit in which the judgment was passed have already been settled up to the Highest Court. It appears that the judgment debtor is hell bent upon coercing the decree holder for not obeying the order of the Court. He portrays that he intends to obey the decree of the Court, but, in fact, is obeying the decree by defiance, and wants to show himself as innocent saying that the breach, if any, is not willful, whereas, in fact, it is willful. No court shall accept such contention of defiant-judgment debtor. 16. He portrays that he intends to obey the decree of the Court, but, in fact, is obeying the decree by defiance, and wants to show himself as innocent saying that the breach, if any, is not willful, whereas, in fact, it is willful. No court shall accept such contention of defiant-judgment debtor. 16. Judgment debtor is well advised to remove the wall painting whereby he has depicted that the suit property in respect of which the defendant no. 4 has obtained a decree is under litigation and is disputed. If the judgment debtor does not do so, within a period of four weeks, the executing court shall be at liberty to proceed with the execution, as per the decree, according to law. 17. Civil Revision is accordingly dismissed. Revision Dismissed.