Research › Search › Judgment

Karnataka High Court · body

2018 DIGILAW 129 (KAR)

Padma W/o. Sri H. R. Mudde Gowda v. Rakesh Singh

2018-01-21

B.M.SHYAM PRASAD, H.G.RAMESH

body2018
ORDER : H.G. Ramesh, J. 1. Whether contempt jurisdiction can be invoked for enforcement of a decree passed in a civil suit? This is the question that requires to be answered in this case and is answered as follows: The appropriate course for a decree holder is to approach the Executing Court for enforcement of the decree and not to invoke contempt jurisdiction unless exceptional circumstances exist. 2. In this petition, complainant is seeking to initiate action against the accused alleging disobedience of the judgment and decree dated 05.04.2014 passed by the Court of Additional II Civil Judge, Bangalore Rural District, Bangalore in the suit in O.S. No. 632/2011 granting permanent injunction restraining the defendant from interfering with the plaintiffs’ possession of the suit property without due process of law. 3. Sri A.S. Ponnanna, learned Additional Advocate General appearing for the accused submits that, this petition to initiate action for contempt of court for alleged disobedience of the aforesaid decree of permanent injunction is not maintainable in the light of the law laid down by the Supreme Court in Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 . He specifically referred to the following at paras 18 & 19 thereof: “18. In case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order 39 Rule 2-A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21 Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the 1971 Act when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. …………………………………………… 19. ……………. The contempt jurisdiction cannot be used for enforcement of decree passed in a civil suit.” (Underlining supplied) 4. Sri B.V. Shankara Narayana Rao, learned Counsel appearing for the complainant, in support of the petition, referred to a decision of the Supreme Court in Maruti Udyog Ltd. v. Mahinder C.Mehta, (2007) 13 SCC 220 and also to a decision of the Bombay High Court in Rajinder Kumar Malhotra v. Paresh Biharilal Vyas, (2016) 2 Bom CR 678. 5. We have examined the matter in the light of the aforesaid three decisions. In the light of Kanwar Singh Saini which is extracted above, the appropriate course for a decree holder is to approach the Executing Court for enforcement of the decree and not to invoke contempt jurisdiction unless exceptional circumstances exist. Relating to the exceptional circumstances, the following observations made by the Supreme Court in Kanwar Singh Saini may be noticed: “29. In a given case if the court grants time to a tenant to vacate the tenanted premises and the tenant files an undertaking to vacate the same after expiry of the said time, but does not vacate the same, the situation would be altogether different. (See: Sakharan Ganesh Aaravandekar v. Mahadeo Vinayak Mathkar, (2008) 10 SCC 186 and Mahender Kumar Gandhi v. Mohd. Tajer Ali, (2008) 10 SCC 795). 30. In an appropriate case where exceptional circumstances exist, the court may also resort to the provisions applicable in case of civil contempt, in case of violation/breach of undertaking/judgment/order or decree. However, before passing any final order on such application, the court must satisfy itself that there is violation of such judgment, decree, direction or order and such disobedience is wilful and intentional. Though in a case of execution of a decree, the executing court may not be bothered whether the disobedience of the decree is wilful or not and the court is bound to execute a decree whatever may be the consequence thereof. Though in a case of execution of a decree, the executing court may not be bothered whether the disobedience of the decree is wilful or not and the court is bound to execute a decree whatever may be the consequence thereof. In a contempt proceeding, the alleged contemnor may satisfy the court that disobedience has been under some compelling circumstances, and in that situation, no punishment can be awarded to him. ……………….” (Underlining supplied) 6. There is no exceptional circumstance in this case to resort to the contempt jurisdiction to enforce the decree of permanent injunction granted in favour of the complainant. Hence, we decline to entertain this petition with liberty to the complainant to approach the Executing Court under Order 21 Rule 32 of CPC for enforcement of the decree. The petition is accordingly disposed of. In view of disposal of the petition, IA No.1/2017 filed for impleading does not survive for consideration; it stands disposed of accordingly. CCC disposed of.