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2019 DIGILAW 543 (GAU)

Amzad Hossain Prodhani v. Municipal Board

2019-05-03

PRASANTA KUMAR DEKA

body2019
ORDER : Prasanta Kumar Deka, J. 1. Heard Mr. S. Alim, learned counsel for the petitioner. Also heard Mr. K.K. Mahanta, learned Senior counsel assisted by Mr. R. Islam, learned counsel for the respondents. 2. This application is under Article 227 of the Constitution of India challenging judgment passed by the learned Civil Judge, Dhubri in Title Appeal No. 6/2018 dated 4.6.2018 thereby setting aside the order passed in Title Execution Case No. 22/2016 dated 5.1.2018. The said order held and directed the present respondents more specifically respondent No. 2, the judgment debtors to restore the possession of the decreetal land to the decree holder with a further direction to send the said judgment debtor respondent No. 2 for imprisonment for a period of three months. The judgment and decree of permanent injunction was passed in T.S. No. 490/2006 in favour of the present petitioner decree holder. The petitioner decree holder initiated the Title Execution Case No. 22/2016 by filing an application purportedly under Order 21 Rule 32 CPC for violation of the decree of permanent injunction passed against the Municipal Board, Dhubri represented by its Executive officer and also Chairperson, Municipal Board, Dhubri. As per the contention in the said petition the defendants judgment debtors contested the suit and had knowledge of judgment and decree dated 27.7.2016 passed in Title Suit No. 490/2006 by the court of learned Munsiff No. 1, Dhubri. The judgment debtors more specifically the judgment debtor respondent No. 2 along with labourers visited the decreetal premises and illegally demolished the fencing of suit premises and forcibly took possession willfully violating the decree of permanent injunction. Accordingly a prayer was made to enforce the decree by attachment of entire properties of the judgment debtors and also detain the judgment debtors in civil imprisonment and compel them to obey the judgment and decree by restoring the possession of the schedule premises to the decree holder. 3. After initiation of the execution proceeding though notices were issued to the judgment debtors in order to file their written objection but no objections were filed and at the instance of the petitioner decree holder, the executing court directed the Settlement Officer, Dhubri to attend the court below as witness to depose in favour of the petitioner decree holder. 3. After initiation of the execution proceeding though notices were issued to the judgment debtors in order to file their written objection but no objections were filed and at the instance of the petitioner decree holder, the executing court directed the Settlement Officer, Dhubri to attend the court below as witness to depose in favour of the petitioner decree holder. On 13.11.2017 Pranjit Kumar Wary, the Additional Deputy Commissioner, Dhubri in compliance of the summons was present before the court where after his evidence was recorded without there being any objections filed in the execution proceeding. As per his evidence, on 27.7.2016 he was in-charge of Settlement Officer, Dhubri and Executive Officer, Municipal Board, Dhubri. He further deposed that he did not willfully violated the decree of injunction nor he intentionally avoided to appear before the court despite the service of notice for which warrant of arrest was issued. It would be pertinent to mention herein that vide summons issued by the executing court, the said deponent was directed to appear on 5.5.2017 as witness on behalf of the petitioner decree holder and the summons was duly served in the office of the Settlement, Dhubri. However the said Pranjit Kumar Wary was present on 13.11.2017 where after he deposed before the court. On the basis of said deposition of respondent No. 2, Pranjit Kumar Wary and that of the petitioner decree holder, learned Executing Court passed the impugned order dated 5.1.2018. While passing the impugned order the learned executing court held that Order 21 Rule 32 CPC provides that decree for injunction can be enforced by attachment of property of judgment debtor or by detention in civil prison. It was further held that the person who complains of disobedience or breach has to clearly make out a case beyond any doubt that there was an injunction order directing the person against whom the application is made, to do or desist from doing some specific things. Thereafter the executing court appreciating the evidence of respondent No. 2 who deposed as PW 3 came to the conclusion that the judgment debtor admitted that he had knowledge about the judgment and decree. It was also considered that the PW 3 on 27.7.2016 along with labourers dismantled the structure standing between the D.K. Road and the land of decree holder. It was also considered that the PW 3 on 27.7.2016 along with labourers dismantled the structure standing between the D.K. Road and the land of decree holder. Further it was observed by the executing court that no objection was filed with the plea that they had not violated the injunction order. On the basis of the said appreciation of evidence and observation the executing court held as follows: "16. From the material available on record, it is clear that the disobedience or breach of permanent injunction passed vide Exhibit 1 is proved beyond any doubt. Vide Exhibit 1, there was an injunction/order directing the judgment debtor from taking possession of the suit land/decreetal land or any kinds of entering or earth filling, construction for evicting the plaintiff from the suit land. 17. Accordingly, I hold that the petitioner/decree holder have successfully established his case beyond all reasonable doubt. Hence, I have no hesitation in mind to hold that the Judgment Debtor willfully and intentionally violated the order of permanent injunction passed in T.S. No. 490/2006 and hence, liable to be prosecuted as per law. 18. Accordingly, I direct the Judgment Debtor to restore the possession of the decreetal land to the Decree holder immediately. Further, the Judgment Debtor for the violation of order of permanent injunction be sent to civil imprisonment for a period of three months. 19. Decree Holder is to take necessary step Issue, if step taken." Fixing: 20.2.2018 for report" 4. Being aggrieved by the said order dated 5.1.2018 an appeal was preferred before the court of learned Civil Judge, Dhubri under Order 43 Rule 1(r) CPC which was registered as Title Appeal No. 6/2018 by the present respondent No. 2. The present petitioner decree holder contested the said appeal. The learned first appellate court made an observation that no person accused of any offence shall be compelled to be a witness against himself and holding that the Article 20(3) of the Constitution of India is a protective umbrella against testimonial compulsion for people who are accused of an offence compelled to be witness against themselves, expunged the entire evidence of PW 3 Pranjit Kumar Wary taken on 13.11.2017 and remanded back to the court of Munsiff No. 1 to pass fresh order on the basis of available evidence. The same was done after setting aside the order dated 5.1.2018 by the executing court. 5. The same was done after setting aside the order dated 5.1.2018 by the executing court. 5. Dissatisfied by the said judgment passed in Title Appeal No. 6/2018 the petitioner decree holder filed the revision petition under Article 227 of the Constitution of India. It is the contention of Mr. Ali that the first appellate court exercised its jurisdiction wrongly inasmuch as the appeal was filed under order 43 Rule 1(r) of the CPC purportedly holding the order passed by the executing court to be an order under Order 39 Rule 2(A) of the CPC. It is further pointed out by Mr. Ali that the executing court was correct in directing the respondent No. 2 to deliver back the possession and the fact of violation of the decree of permanent injunction is admitted by the respondent No. 2 and as such the court below rightly passed the punishment as per Order 21 Rule 32 of the CPC. The learned appellate court without considering relevant provisions of law straightway set aside the order only on the ground that the executing court considered the evidence of PW 3 while passing the said order as such Mr. Ali sought for interference by exercising the revisional jurisdiction of this Court. 6. Mr. Mahanta, learned Senior counsel on the other hand strenuously objects to the submission of learned counsel for the petitioner. It is submitted that the petition was filed only against the post of the Executive Officer of the Municipal Board, Dhubri. The present respondent No. 2 was not a named person in the said application alleging against him the act of willful violation of the decree. The executing court cannot exercise its jurisdiction until and unless there is an allegation of willful violation of the decree, against a specific person. Supporting the act of exercising the jurisdiction by the appellate court Mr. Mahanta submits that though the petition was filed under Order 21 Rule 32 of the CPC, the executing court went beyond its jurisdiction and held that the decree of permanent injunction was violated by the respondent No. 2 as if the decree amounts to an order passed under 39 Rule 1 of the CPC and as such, there is no error apparent on the face of the judgment passed by the appellate court invoking its jurisdiction under Order 41 Rule 1(r) of the CPC. It is further submitted that the whole procedure adopted by the executing court is unfair and as such the judgment passed by the appellate court requires no interference by this Court. 7. I have given due consideration to the submissions of the learned counsel. The intent of the present petitioner decree holder was to execute the decree of permanent injunction seeking the executing court to exercise its jurisdiction under Order 21 Rule 32 of the CPC. Admittedly there is a decree of permanent injunction restraining the Municipal Board, Dhubri from interfering with the peaceful possession of the decreetal property. Allegedly the present respondent No. 1 Municipal Board, Dhubri through its Executive Officer, respondent No. 2 demolished the pillar raised by the petitioner decree holder and being aggrieved the application under Order 21 Rule 32 CPC was preferred. The learned court below went wrong in exercising its jurisdiction imposing the mode of enforcement by putting the respondent No. 2 in civil imprisonment. The judgment debtor is the Municipal Board, Dhubri which is a body corporate having perpetual succession under a common seal and by that name to sue and be sued, as per Section 10 of the Assam Municipal Act, 1956. Being a body corporate the mode of execution ought to have resorted under Order 21 Rule 32(2) of the CPC which says attachment of property of corporation or with leave of the court by detention of the directors. The second option is not available inasmuch as the name of the officer concerned is not mentioned in the petition under Order 21 Rule 32(2). Even if the petitioner sought for the leave, then the court must take a judicious decision inasmuch as the decree of injunction is one of personam i.e. binding the Municipal Board Dhubri only. Present respondent No. 2 is an official deemed under the law to be the Executive Officer of the said Board at the relevant point of time while passing the decree. On the date of filing the execution petition he was not holding the post. So mode of execution ordered by putting the officer in civil imprisonment cannot be passed when there is a specific provision specified under Order 21 Rule 32(2). 8. On the date of filing the execution petition he was not holding the post. So mode of execution ordered by putting the officer in civil imprisonment cannot be passed when there is a specific provision specified under Order 21 Rule 32(2). 8. Even if it is presumed that Order 21 Rule 32(1) CPC is applicable then also the court cannot resort to enforce the decree of permanent injunction by putting the judgment debtor in civil imprisonment unless a direction is given to obey the decree against the person the decree is passed. Because Order 21 Rule 32(I) prescribes two modes of execution-(i) by giving a chance to obey the decree to the person found to be bound by the decree and (ii) by putting such person in civil imprisonment. The executing court while executing such decree against Government official must be more vigilant while giving the construction of the word "party" as appeared in Order 21 Rule 32(I) CPC. 9. To that effect it would be proper to take note of the observation made by Hon'ble Supreme Court in Yashpal Singh Vs. VIII ADJ, reported in (1992) 2 SCC 504 . Therein the appellant was not a party to the suit in which the injunction had been passed. The Forest department of State of U.P. and the State of U.P. were parties and being an employee of the State of U.P. the appellant was in an indirect way bound by the injunction but it cannot be said that he was by himself a party to the suit. The word 'party' cannot be construed so liberally as to include each and every employee of the State of U.P. to have been a party to the suit in which injunction was passed. The appellant stands transferred to another district and was in a promotional post. In the said factual matrix the Apex Court considered the supervening facts and held that on either count the appellant need not suffer action under Order 21 Rule 32 CPC to remain under threat of attachment of his property. Similar is the case in hand. Even if the court below failed to exercise the jurisdiction under Order 21 Rule 32(2) CPC but while passing the order, the word "party" to the suit ought not to be construed liberally as to include each and every employee or officials of the Board. Similar is the case in hand. Even if the court below failed to exercise the jurisdiction under Order 21 Rule 32(2) CPC but while passing the order, the word "party" to the suit ought not to be construed liberally as to include each and every employee or officials of the Board. The executing court below has failed to apply its jurisdiction other way. 10. The appellate court also misdirected while exercising its jurisdiction under Order 43 Rule 1(r) CPC. The impugned order is admittedly passed by an executing court. There is no provision for appeal u/s. 104 of CPC against any order passed under Order 21 CPC inasmuch as the said Order 21 CPC is a complete code for execution of decree and as such question of filing the appeal u/s. 104 CPC does not arise at all. Section 104 of the CPC is reproduced here-in-below:- "SECTION 104. Order from which appeal lies-(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (ff) an order under Section 35-A. (ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be; (g) an order under Section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules; [Provided that no appeal shall lie against any order specified in clause (ff) save on the gourd that no order, or an order for the payment of a less amount, ought to have been made] (2) No appeal shall lie from any order passed in appeal under this section." 11. The right of appeal given under clause (ff), (g) and (h) of Section 104 CPC is independent of the one conferred by Order 43 Rule 1 CPC and is not controlled by it. Order 43 Rule 1 provides for an appeal from certain Orders under Section 104 CPC. 12. The right of appeal given under clause (ff), (g) and (h) of Section 104 CPC is independent of the one conferred by Order 43 Rule 1 CPC and is not controlled by it. Order 43 Rule 1 provides for an appeal from certain Orders under Section 104 CPC. 12. Here it is a case of detention of arrest in the civil prison but under Order 21 Rule 32 CPC. Order 21 CPC is the complete code for matters pertaining to execution proceeding as hereinabove observed. Section 104(h) CPC is an independent provision beyond the scope of Order 43 Rule 1 CPC. So the stipulation must have to be looked detaching it from the provision of Order 43 Rule 1 CPC. If it is considered, Section 104(h) applies to an order under any of the provision of CPC imposing fine or directing the arrest or detention in civil prison of any person but it does not cover such arrest or detention in an execution proceeding. So the appellate court exceeded its jurisdiction by deciding the appeal considering it to be an one under Order 43 Rule 1(r) CPC or under Section 104 CPC. 13. Invoking the power of superintendence under Article 227 of the Constitution, as both the courts below had gone beyond its jurisdiction, I am constrained to set aside and quash the proceeding i.e. Title Execution Case No. 22/2016 in by the learned court of Munsiff No. 1, Dhubri which I accordingly do. However liberty is granted to the present petitioner to file appropriate application for execution of the decree of permanent injunction if so advised. This revision petition is disposed of accordingly. 14. Interim order passed earlier stands vacated.