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2019 DIGILAW 2389 (MAD)

Selvaraj v. Ponnuthai (died)

2019-09-13

P.T.ASHA

body2019
JUDGMENT : Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, against the order dated 05.08.2010 passed in E.P.No.343 of 2008 in O.S.No.599 of 1988 on the file of the First Additional District Munsif, Trichirappalli. The above civil revision petition has been filed by the judgment debtors challenging the order of the Executing Court namely, First Additional District Munsif Court, Trichirappalli, in E.P.No.343 of 2008. 2. The brief facts which are relevant for disposing of the above civil revision petition, shorn of details, are that the respondents/plaintiffs had filed a suit in O.S.No.599 of 1988 on the file of the First Additional District Munsif Court, Trichirappalli, seeking for the relief of permanent injunction restraining the defendant, his men, agents and servants from interfering with the possession and enjoyment of the suit property. The property in question has been described as follows:- Tiruchirapalli Town, Thillainagar, Vadavur Nadu Street, within the following four boundaries; - South of East West Street - North of Chinnaiyan's property and Sevarajar's property - West of Yusuf Rowther's vacant site. - East of Temple's vacant site. The property measuring 42 feet East West on the northern side and 46 feet East West on the Southern side and 61 feet North South. The property namely site as well as construction thereon. Door No.22 Old Ward No.3. New Ward No.D. Old Block No.2. New Block No.29. Old T.S.No.29. New T.S.No.2 and 3. 3. The bone of contention is with reference to the property measuring an extent of 61 feet north-south. The suit was decreed after contest, by judgment and decree dated 28.12.2005. It appears that thereafter the decree holders/plaintiffs had filed an Execution Proceeding in E.P.No.343 of 2008 stating as follows:- It its, therefore, prayed that the Hon'ble Court may be pleased to proceed against the respondent/defendant/Judgment Debtor for having disobeyed the decree for permanent injunction passed against him in O.S.No.599 of 1988 and thereby committing contempt of Court, for which, the respondent/defendant/judgment debtor has got to be arrested and put him in civil prison and thus render justice. 4. In the execution petition, the respondents/plaintiffs, has not given any details as to how the defendant had violated the decree passed in O.S.No.599 of 1988 or that despite giving him an opportunity to comply with the decree the defendant had failed to so comply. The Executing Court has ordered arrest of revision petitioner/defendant on 23.10.2009. 4. In the execution petition, the respondents/plaintiffs, has not given any details as to how the defendant had violated the decree passed in O.S.No.599 of 1988 or that despite giving him an opportunity to comply with the decree the defendant had failed to so comply. The Executing Court has ordered arrest of revision petitioner/defendant on 23.10.2009. Though the revision petition has not been filed challenging this order and is challenging the later order dated 05.08.2010, however considering the fact that the execution proceeding is filed for arrest whereby the personal liberty is sought to be taken away, this Court has considered the arguments advanced by both sides on the validity of the order of arrest exercising jurisdiction under Article 227 of the Constitution of India. 5. The learned counsel for the petitioner would contend that he has not violated the order of the Court and that the construction which has been put up by the petitioner/defendant is very much within his property. 6. On the other hand, the learned counsel for the respondents/ plaintiffs made a submission that the petitioner/defendant has demolished his northern wall and put up a new construction encroaching the property of the plaintiffs and therefore, this act that has forced the plaintiffs to approach the Execution Court. These contentions come to the fore only during the arguments. 7. Heard the learned counsel on either side and perused the papers. 8. To dispose this revision it is necessary to first understand the scope of object of Order 21 Rule 32 (1) of Civil Procedure Code. The provision of Order 21 Rule 32(1) of CPC would read as follows:- 32. Decree for specific performance for restitution of conjugal rights, or for an injunction— (1) 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 wilfully 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. 9. 9. A reading of the above provision would make it clear that prior to the filing of the execution proceedings, the decree holder has to give an opportunity to the judgment debtor to obey the decree. If after such an opportunity has been granted and the judgment debtor willfully fails to rectify his mistake, then the decree may be enforced in the case of injunction either by his arrest or by attachment of his property. Therefore, the decree holder is bound to satisfy the Court (a) that an opportunity has been given to the judgment debtor to comply with the decree and (b) despite such an opportunity is being given, the judgment debtor has willfully failed to obey the decree. Useful reference in this regard may be made to the following judgments:- (i) In Arjuna Gounder Vs. Govindaraju Reddiar reported in 1990 (2) LW 98 , this Court has held as follows: The provisions of Order 21, Rule 32, C.P.C. are extremely penal. In fact a proceedings under Order 21, Rule 32, C.P.C. is a proceeding for punishment for contempt of Court. An extreme penalty of attachment of properties as well as detention in civil prison is provided for in the rule even in execution of a decree for restitution of conjugal rights, specific performance and injunction. In fact under Sub-rule (3) the properties, which are attached under Sub-rule (1) could be sold without the Court deciding the quantum of compensation, if any, payable to the decree-holder, on account of the disobedience of the decree by the judgment-debtor under Sub-rule (3), the Court is obliged to decide the quantum only after the sale of the property is held. When the provisions are so severe against the judgment-debtor, it is the duty of the Court to construe the rule strictly and the Court which passes orders under the rule must act strictly in accordance with the provisions of the rule. Thus, under Sub-rule (1) of Rule 32, the requirement which should be satisfied is that the judgment-debtor having had opportunity to obey the decree has wilfully failed to obey it. Unless and until the Court gives a finding to that effect, the Court is not entitled to pass any order of attachment or detention in civil prison. Thus, under Sub-rule (1) of Rule 32, the requirement which should be satisfied is that the judgment-debtor having had opportunity to obey the decree has wilfully failed to obey it. Unless and until the Court gives a finding to that effect, the Court is not entitled to pass any order of attachment or detention in civil prison. I am of the view that the jurisdiction of the Court to pass an order of attachment or detention in civil prison arises only after giving a finding that the judgment - debtor has wilfully disobeyed the decree after having had an opportunity to obey the same. In the absence of such a finding, any order passed by the Court granting attachment or directing detention of the judgment debtor in civil prison is a nullity. (ii) In Datchinamoorthy Vs. Ravichandran reported in 2011 (2) LW 393 , this Court has held as follows: 16. 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 wilfully failed to obey it. If the party has had the opportunity and has wilfully 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. (iii) In Raman Nambissan Vs. Damodaran Nambissan & others reported in 1995 (1) KLJ 566 , the Kerala High Court has held as follows: When a decree is sought to be enforced under Order 21 Rule 32, there must be specific averments in the execution petition that the party against whom the decree for injunction has been granted despite opportunity of obeying the decree has willfully failed to obey it and hence execution of the decree has become necessary. When execution petition is filed it is elementary to state that the respondents against whom decree for injunction was passed willfully disobeyed it despite opportunity of obeying it. In other words, willful disobedience of the decree by the respondents should have been highlighted in the petition. As thers is no specific averment as contemplated under Rule 32 in the petition, revision petitioner cannot successfully proceed with the matter in execution. (iv) In Shivamurthy Mahalingappa Kuchanaur Vs. Dannammadevi Cycle Mart, Rabakavi reported in AIR 1987 Karnataka 26, the Karnataka High Court has held as follows: 6. Sub-rule (1) of R. 32 of 0. XXI of the Code, in so far it is material for the present discussion, reads thus : "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 may be enforced. In the case of a decree. For an injunction by his detention in the civil prison .................." The sub-rule, as seen from its clear and explicit language, provides that a decree for injunction passed against a party could be enforced by his detention in a civil prison, if he has willfully failed to obey such decree despite having had an opportunity of obeying it. In other words, the sub-rule, no doubt, enables a holder of a decree for injunction to seek its execution from the executing Court by requiring it to order the detention of the person bound by the decree, in a civil prison. But, the Court cannot, according to the same sub-rule, make an order for detention of the person unless it is satisfied that that person has had an Opportunity of obeying the decree and yet has willfully disobeyed it. (V) In Koya Ranga Reddy and Ors. Vs. Koya Narayana Reddy and Ors reported in 2007 (3) ALD 4 , the Andhra Pradesh High Court has held as follows: 7. From a perusal of the Rule, it is evident that mere existence of a decree for perpetual injunction, or for that matter, a mere complaint, by the decree-holder against the judgment-debtor, is not sufficient to direct the detention of the judgment-debtor in civil prison. Two facts are necessary to be proved by the decree-holder : In a way, they are two facets of the same phenomenon. 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 wilfully 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 wilful, 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 satisfaction of the Court. The fact that 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. 10. Therefore, a conspectus of the above judgments clearly mandates that the Executing Court before ordering the arrest or attachment, at the first instance, should examine as to whether the judgment debtor has had an opportunity to obey the decree and on granting such an opportunity, the judgment debtor has willfully disobeyed the decree and in these circumstances, the Executing Court can order the arrest or attachment of property in case of a decree for injunction. 11. Admittedly, in the instant case, there is absolutely no proof to show that the decree holder had put the judgment debtor on notice about his violating the decree for injunction and thereafter the revision petitioner/judgment debtor has failed to obey the decree and continued to violate the same. In fact, the reading of the 'B' diary extract would indicate that on 28.08.2009, arrest has been ordered by the Executing Court merely by pursing the proof affidavit. This is in stark contradiction to the procedure contemplated under the provisions of Order 21 Rule 32(1) of Code of Civil Procedure. In these circumstances, this Court is of the opinion that the order of arrest passed by the Court below is nullity and deserves to be set aside. 12. The learned counsel for the respondents/plaintiffs would submit that the construction has been put up pending the suit and time for filing the execution petition has also been lapsed. In these circumstances, this Court is of the opinion that the order of arrest passed by the Court below is nullity and deserves to be set aside. 12. The learned counsel for the respondents/plaintiffs would submit that the construction has been put up pending the suit and time for filing the execution petition has also been lapsed. The proviso to Section 136 of the Limitation Act provides as follows:- “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.” 13. Considering the fact that the petitioner/judgment debtor had approached this Court as soon as execution petition in question has been filed and obtained stay of further proceedings and the proviso to Section 136 of the Limitation Act provides no period of limitation, interest of justice would be sub-served, if liberty is granted to the decree holder to file a fresh execution proceedings in case there is violation of the decree passed in O.S.No.599 of 1988 on the file of the First Additional District Munsif, Trichirappalli, subject to the provisions of Order 21 Rule 32 of the Code of Civil Procedure. 14. With the above observation, this Civil Revision Petition is allowed and the order dated 05.08.2010 passed in E.P.No.343 of 2008 by the First Additional District Munsif, Trichirappalli. is set aside. No costs.