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2023 DIGILAW 1684 (MAD)

Sararth Kakumanu v. Veerappan Arunachalam

2023-04-13

S.SOUNTHAR

body2023
ORDER : PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the fair and decreetal order dated 06.08.2022 passed in E.P.No.1191 of 2013, on the file of the IX Assistant City Civil Court, Chennai. The Civil Revision Petition is filed against the order passed by the Court below directing the arrest of the petitioner/judgment debtor for wilful disobedience of the decree for injunction dated 17.10.1995 passed in O.S.No.9974 of 1992. 2. Factual background of the facts: One Jayalakshmi Ammal under whom the respondents are claiming title filed a suit in O.S.No.9974 of 1992 on the file of the City Civil Court, Chennai, seeking a decree for permanent injunction restraining the petitioner herein/defendant therein from any manner using the private road, owned by said Jayalakshmi, comprised in R.S.No.3958/2, Bishop Gardens, Madras – 28 and morefully described in red washed portion in the plan annexed with the plan and also for mandatory injunction directing the petitioner herein to remove the iron gate put up by him in the eastern compound wall of the said Jayalakshmi marked in Yellow Colour in the plan annexed herewith and to restore the compound wall to its original position. The said suit was decreed ex-parte on 17.10.1995. The plaintiff/decree holder viz., Jayalakshmi Ammal passed away on 27.08.2005. Now, the respondents herein claimed that they have inherited and acquired the subject matter of the property in O.S.No.9974 of 1992 and filed an execution petition alleging violation of the injunction decree by the petitioner. The petitioner herein filed a counter and resisted the execution petition on various grounds inter alia contending that he did not violate the decree. The executing Court on consideration of the oral and documentary evidence let in by the parties came to the conclusion that the petitioner wilfully violated the decree for injunction and consequently ordered his arrest and detention in Civil prison. Aggrieved by the said order, the petitioner has come by way of this revision. 3. Mr.Om Prakash, learned Senior counsel appearing for the petitioner submitted that as per the decree violation of which is alleged by the respondents, the survey number of the suit properties is R.S.No.3958/2. Aggrieved by the said order, the petitioner has come by way of this revision. 3. Mr.Om Prakash, learned Senior counsel appearing for the petitioner submitted that as per the decree violation of which is alleged by the respondents, the survey number of the suit properties is R.S.No.3958/2. However, later on, the respondents themselves found the correct survey number of the private passage in respect of which the suit was filed found to be R.S.No.3958/3 and they filed an application for amendment of the decree in E.A.No.1776 of 2017. Even though the said application was allowed by the executing Court and confirmed by the High Court, the respondents failed to take any steps to carryout the amendment and even as on today the survey number mentioned in the decree remains as 3958/2. In view of the discrepancy in the survey number, the act of violation alleged against the petitioner cannot be pressed into service. 4. The learned senior counsel further submitted that in the execution petition filed by the respondents there was no mention of alleged violation. No affidavit was filed along with execution petition as mandated by Order XXI Rule 11A of CPC. The learned senior counsel further submitted that the respondents filed another suit in O.S.No.1578 of 2014 against the petitioner in respect of the same cause of action and that itself justified the stand of the petitioner that there was no executable decree. The learned senior counsel also submitted that the decree was passed as early as 1995 and for nearly 17 years, there had been no allegation of violation and that itself shows there is no wilful violation on the part of the petitioner. 5. The learned senior counsel also submitted that without prejudice to his contention on the merits of the case, the petitioner filed affidavits dated 01.09.2022 and 02.12.2022, whereunder, he tendered his unconditional apology and undertook to obey the judgment decree dated 17.10.1995 passed in O.S.No.9974 of 1992. He also undertook to remove all the structures put up by him around the tree in the suit property. Therefore, the learned Senior Counsel submitted this Court may record the affidavits filed by the petitioner tendering unconditional apology. Taking into consideration his old age, this Court may take liberal view of the matter and set aside the order of arrest passed against him. 6. Therefore, the learned Senior Counsel submitted this Court may record the affidavits filed by the petitioner tendering unconditional apology. Taking into consideration his old age, this Court may take liberal view of the matter and set aside the order of arrest passed against him. 6. Per contra, Mr.Anirudh Krishnan, learned counsel appearing for the respondents/decree holders submitted that the contention of the learned Senior Counsel that the respondents/decree holders did not purchase the suit property which is a passage from Jayalakshmi Ammal cannot be accepted in the light of the order passed by this Court in CRP.No.468 of 2016. He also contended that regarding the mis-description of the survey number, the contention cannot be raised again and again even though the same was settled by this Court in CRP.No.468 of 2016 and CRP.No.2107 of 2018. The learned counsel by taking this Court through the orders passed by this Court in the above said Civil Revision Petition contended that the mis-description in survey number and the entitlement of the respondents to maintain the execution petition as successor in interest of the original plaintiff Jayalakshmi etc., were already decided in favour of the respondents and hence the same cannot be pressed into service again. The learned counsel for the respondents by drawing the attention of this Court to the findings of this Court in CRP.No.2107 of 2018 between the same parties submitted that objection raised by the petitioner in the present Civil Revision Petition, as if execution petition filed by the respondents was not maintainable was already considered and decided by this Court in favour of the respondents. The learned counsel for the respondents also submitted that the suit filed by the petitioner in O.S.No.915 of 2019 seeking injunction in respect of the very same property was struck down by this Court in CRP.No.847 of 2019, on the grounds of abuse of process and relitigation. The learned counsel for the respondents by drawing the attention of this Court to the decree order passed in E.A.No.1776 of 2017 filed by the respondents to amend the survey number found in the schedule of property submitted that the amendment sought for by the respondents was judicially carried out. 7. The learned counsel for the respondents by drawing the attention of this Court to the decree order passed in E.A.No.1776 of 2017 filed by the respondents to amend the survey number found in the schedule of property submitted that the amendment sought for by the respondents was judicially carried out. 7. In reply, the learned Senior Counsel appearing for the petitioner submitted that the contention of the learned counsel for the respondents that the amendment sought for by the respondents was judicially carried out by the Court cannot be accepted and the same is contrary to Order 6 Rule 18 of CPC, which requires either party to the amendment shall carry out the same. The learned counsel by relying on the judgment reported in 2003 (2) LW 295 in Southern Ancillaries Private Limited rep by its Managing Director S.Sadasivam Vs. Southern Alloy Foundaries Private Limited, Rep. By its Managing Director submitted if the party applying for amendment fails to carryout the amendment order by the Court within 14 days from the date of order, the said amendment shall not be permitted to be carried out thereafter and the Court has to consider only the un-amended pleadings in such cases of failure. The learned counsel also by relying on the judgment reported in 1986 Indian Law Reports Karnataka 2127 in Sivamoorthy Vs Dhannamma Devi Cycle Mart submitted that in order to presume the wilful violation of the decree, the judgment debtor must have had the opportunity to obey the decree but must have wilfully, consciously and deliberately disobeyed the decree. It is the submission of the learned senior counsel that the respondents/decree holder failed to establish that the petitioner wilfully disobeyed the decree. 8. Heard the arguments of the learned Senior counsel for the petitioner and the learned counsel for the respondents. Perused the typed set of papers and other related documents. 9. The first contention raised by the learned senior Counsel for the petitioner revolves around the mis-description of the survey number in the decree and the entitlement of the respondents to maintain an execution petition in their alleged capacity as successors in interest of the original decree holder. Perused the typed set of papers and other related documents. 9. The first contention raised by the learned senior Counsel for the petitioner revolves around the mis-description of the survey number in the decree and the entitlement of the respondents to maintain an execution petition in their alleged capacity as successors in interest of the original decree holder. It is the submission of the learned senior counsel that as per the decree, the survey number of the suit property was mentioned as 3958/2, whereas, later on the respondents themselves found that the survey number of the disputed passage as 3958/3 and consequently filed an application to amend the decree but failed to carryout the same. Hence, when the decree operates in respect of wrong survey number, violation of the decree in respect of correct survey number 3958/3 cannot be presumed. In this connection, it would be appropriate to refer to the orders passed by this Court in the earlier civil revision petition between the very same parties. This Court in CRP.No.2107 of 2018 between the very same parties observed as follows: “In this legal background, the petitioner herein, having failed to raise the specific plea with regard to the description before the Execution Court in his application under Section 47 and also that the same ground being already answered by this Court in an earlier decision in CRP No.468 of 2016 and further that the rectification of survey number in the decree is pending in an application under Section 47 CPC., filed by the respondents herein, it can only be held that the discrepancy of the survey numbers will not entitle the petitioner herein to seek for rejection of the Execution Petition itself. 17. The aforesaid decision is self explanatory and as such, even assuming that there are other legal representatives of Late Jayalakshmi Ammal, the present Execution Petition by one of the legal representative is maintainable.” 10. It is also pertinent to refer to the evidence of the petitioner herein as RW.1, where, he admitted about the identity of the property in question. OTHER LANGUAGE 11. The admissions of petitioner herein as RW.1 before the executing Court clearly shows that the passage on the western side of his property is the suit property and there was no dispute with regard to the identity of the same. 12. OTHER LANGUAGE 11. The admissions of petitioner herein as RW.1 before the executing Court clearly shows that the passage on the western side of his property is the suit property and there was no dispute with regard to the identity of the same. 12. As per the plan appended to the decree the private road of the original plaintiff Jayalakshmi Ammal lies on the western side of the petitioner/defendant property. Therefore, it is clear, there is no dispute with regard to the identification of the property and the parties understood the property in the decree passed in O.S.No.9974 of 1992. The suit property was not only identified by the survey number, it was also more fully described in the sketch annexed with the decree in O.S.No.9974 of 1992, which reads as follows: “That the defendants or his agent or anybody claiming through him be and are hereby restrained by a permanent injunction from in any manner using the private road owned by the plaintiff comprised in R.S.No.3958/2, Bishop Garden, Madras – 28 and more fully marked in red colour in the sketch annexed herewith. 13. Therefore, in the decree, the suit property was not only identified with reference to the survey number, it was also identified by red washed portion in the sketch annexed to the decree. The red washed portion in the plaint decree lies on the western side of property of the petitioner/defendant. The petitioner as RW.1 in execution petition clearly admitted that the disputed suit property is a road lying on the western side of the property. Therefore, there is no dispute, with regard to the identity and the petitioner herein clearly understood the location of the suit property. Therefore, the argument made by the learned senior counsel for the petitioner with regard to the mis-description and identity of suit property are rejected. Likewise, the arguments regarding failure of the respondents to carry out the amendment of the survey number would also lose its significance when the petitioner understood the correct location of the suit property. 14. It is seen from the records that the petitioner herein filed a suit for injunction in respect of the very same property in O.S.No.915 of 2019 on the file of II Assistant City Civil Court, Chennai and the same was struck off by this Court by order dated 18.03.2019 in CRP.No.843 of 2019. 14. It is seen from the records that the petitioner herein filed a suit for injunction in respect of the very same property in O.S.No.915 of 2019 on the file of II Assistant City Civil Court, Chennai and the same was struck off by this Court by order dated 18.03.2019 in CRP.No.843 of 2019. It would be appropriate to refer to the observation of this Court in the above Civil Revision Petition which is as follows: “9. Considering the above submissions and judgment, I am of the view that the very suit itself has been laid to non-suit the earlier judgment and decree passed against the respondent/plaintiff in the same subject matter and further, the same has been suppressed in the present suit. Further, if such suits are entertained to non-suit the decree and judgment that has been already passed, the decree and judgment passed by the Court will not reach its logical conclusions. Such subsequent suits are only frivolous and only for relitigation.” 15. Therefore, this Court in the order referred above categorically held that subsequent suit filed by the petitioner in O.S.No.915 of 2019 was only an attempt to circumvent the earlier judgment and decree passed against the petitioner. After observing so, this Court struck-off the plaint filed by the petitioner, on the ground of re-litigation. It shows the petitioner attempted to circumvent the decree by filing frivolous suit. 16. The learned senior counsel for the petitioner also assailed the order passed by the executing Court on the ground that execution petition did not mention the grounds on which the arrest of the judgment debtor was sought for. He pressed into service Rule 11(A) of Order 21 in this regard. Order 21 Rule 11(A) of CPC reads as follows: “11A. Application for arrest to state grounds: Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.” 17. A perusal of the above rule would make it clear that when an execution petition is filed for arrest of the person, the ground on which such arrest and detention in prison is sought for shall be stated in the petition itself or it should be accompanied by an affidavit stating the grounds on which the arrest is sought for. A perusal of the above rule would make it clear that when an execution petition is filed for arrest of the person, the ground on which such arrest and detention in prison is sought for shall be stated in the petition itself or it should be accompanied by an affidavit stating the grounds on which the arrest is sought for. In the case on hand, in the execution petition filed by the respondent, there was no specific mention about the act of violation by the revision petitioner/judgment debtor, however, a prayer for arrest/detention in civil prison was made. Subsequently, in the proof affidavit filed by the respondent/decree holder, the act of violation by the petitioner and the grounds for seeking his arrest and detention in civil prison were averred. The acts of violation of decree alleged against the petitioner were mentioned in paragraph Nos.5 to 9 of the proof affidavit filed by the respondent dated 19.06.2014 in execution petition. Rule 11(A) of Order 21 CPC is only a procedural law and hence merely because an affidavit was not filed along with execution petition at the time of presentation, we cannot come to a conclusion that such omission would be fatal to the case. Admittedly, in this case, subsequently a proof affidavit of the respondent was filed mentioning the ground on which arrest was sought for. Thereafter, the petitioner was allowed to cross examine the first respondent who filed the affidavit. Hence, I hold non-filing of affidavit along with petition for execution is only a curable defect and the execution petition filed by the decree holder need not be rejected on that technical ground when the defect was cured subsequently. 18. The learned senior counsel appearing for the petitioner by relying on the judgment reported in 1986 Indian Law Reports Karnataka 2127 in Sivamoorthy Vs Dhannamma Devi Cycle Mart submitted that wilful violation of the decree can be presumed only when judgment debtor had an opportunity to obey the decree. He further submitted that such violation should be wilful, conscious and deliberate and in the facts of the case, there is no evidence available on record to come to a conclusion, the petitioner violated the decree consciously and deliberately. He further submitted that such violation should be wilful, conscious and deliberate and in the facts of the case, there is no evidence available on record to come to a conclusion, the petitioner violated the decree consciously and deliberately. In Paragraph No.10 of this order certain portions of petitioner's admission as RW.1 had been extracted in vernacular wherein, the petitioner deposed that he visited the disputed property and there was no necessity to get the permission of respondent/decree holder. He also deposed that the judgment passed against him was wrong and the same would be demonstrated at the time of arguments. He specifically deposed that since the judgment passed in O.S.No.9974 of 1992 was an ex-parte judgment it would not bind him. The relevant portion of his evidence in this regard is extracted in vernacular as follows: OTHER LANUAGE 19. In his evidence the petitioner clearly admitted notwithstanding the ex-parte decree for injunction against him, he entered the disputed property without any permission of the decree holder and he had gone to the extent of stating that the ex-parte decree would not bind him. Therefore, he was conscious about what he was doing. In other words, he appeared to have violated the decree as it was an ex-parte decree. In such circumstances, it cannot be argued by the learned senior counsel for the petitioner that there was no occasion for his client to obey the decree and he did not violate the decree consciously and deliberately. Therefore, the said contention of the learned senior counsel is rejected in view of the well pronounced admission by petitioner as RW.1. 20. In view of the discussions made above, there is no difficulty in coming to the conclusion there was a wilful act of disobedience to the decree of injunction passed against the petitioner and there was no dispute with regard to the identity of the property also. 21. The learned senior counsel by taking this Court to the undertaking affidavit filed by the petitioner dated 01.09.2022 submitted that the petitioner is a senior citizen aged about 73 years facing lot of physical ailments by virtue of age and he had also undertaken to abide by the judgment and decree dated 17.10.1995 passed in O.S.No.9974 of 1992 in its letter and spirit in future. Therefore, the learned senior counsel requested this Court to take lenient view of the matter and set aside the order of arrest passed against him. It is true, as per the affidavit filed by the petitioner he is a septuagenarian inflicted with physical ailments due to his age. It was also averred by him that he was a chronic diabetic and lost his complete vision in left eye. The petitioner also produced a medical certificate issued by the Doctor dated 16.03.2022, wherein, the Doctor who issued certificate mentioned that the petitioner was suffering from right eye 6th cranial nerve palsy and he got only 25% vision. In the undertaking affidavit, the petitioner undertook to abide by the judgment dated 17.10.1995 passed in O.S.No.9974 of 1992 in its letter and spirit. The relevant portion of undertaking affidavit of petitioner is as follows: “4. If any of the acts done by me after the passing the said decree, amounts to violation of the decree dated 17.10.1995, I sincerely pray for an unconditional apology, as the same is not wilful. Further, I undertake that I will also abide by the judgment and decree dated 17.10.1995 passed in O.S.No.9974 of 1992, in letter and spirit.” 22. In view of the undertaking affidavit filed by the petitioner that he would abide by the decree and also the fact that he is a senior citizen aged about 73 years affected with physical ailments, this Court is inclined to take lenient view of the matter. Therefore, recording the undertaking affidavit filed by the petitioner, this Court is inclined to modify the order passed by the executing court. 23. In view of the undertaking affidavit filed by the petitioner, this Court is of the view that he should be given an opportunity to prove his bonafides and avert an order of arrest. In this regard, it would be appropriate to refer to the decision of the Division Bench of Kerala High Court in Rajappan and Ors. Vs. Sankaran Sudhakaran reported in AIR 1997 Kerala 315. The relevant observation of the Division Bench of Kerala High Court is as follows: “Then the only question is whether the judgment-debtors need be arrested as ordered by the Co. is below. We think that the judgment-debtors must be given an opportunity to avert the order for their arrest by compensating the plaintiff in a reasonable manner for their act of violation. is below. We think that the judgment-debtors must be given an opportunity to avert the order for their arrest by compensating the plaintiff in a reasonable manner for their act of violation. While therefore we maintain the order of the Court below we order that the warrant issued by the Court below need not be enforced on condition that the judgment-debtors pay into the executing Court towards compensation to the decree holder a sum of Rs. 5000 within a period of one month from this date. If the said sum of Rs. 5000 is deposited, the same will be disbursed to the decree-holder and further proceedings in the present Execution Petition will be terminated. In case the judgment debtors do not deposit the said amount within the time stipulated, the Court below will enforce its order and issue the necessary further directions in the present execution petition itself. It is made clear that the decree-holder would be entitled to move the executing Court in case of any further violation of the decree by the judgment-debtors and if such further violation is made, it will be dealt with by the executing Court very seriously and on the basis of the ratio of this order that the decree is enforceable as against the additional judgment-debtors as well. We therefore confirm the order of the executing Court with the modification that the judgment-debtors are given an opportunity to compensate the decree-holder for their violation and avert the enforcement of the present order for their arrest and on their failure to do so directing the executing Court to proceed further and implement its order. Under the circumstances of the case, we make no order as to costs.” 24. The above said view of the Division Bench of Kerala High Court order was followed by this Court in Mr.Palanisamy vs Mr.Mallanayakar reported in MANU/TN/1528/2011, wherein, this Court after referring to above mentioned observation of Division Bench of Kerala High Court in the decision cited supra, observed as follows: “ In the light of the aforesaid decision and in the light of the submissions made by the learned counsel for the petitioners that the petitioners will abide by the decree for injunction and will not violate the same in future, this Court is inclined to accept the contentions of the learned counsel for the petitioners.” 25. In the light of the above discussions, this Court after taking into consideration the undertaking affidavit filed by the revision petitioner that he would abide by the decree put into execution, his age and illness, this Court is inclined to modify the order impugned as stated infra. 26. The order of arrest passed by Court below shall be kept in abeyance by directing the petitioner/judgment debtor to pay compensatory cost of Rs.10,000/- to the respondent within a period of two weeks from today. The cost shall be deposited by petitioner to the credit of E.P.No.1191 of 2013, on the file of the IX Assistant City Civil Court, Chennai, within two weeks. On such deposit, the said sum shall be disbursed to the respondents/decree holder and further proceedings in present E.P shall be terminated. In case, petitioner fails to deposit the amount within the time stipulated, the eclipse created by this order will get lifted and the executing Court is at liberty to proceed with arrest as per order impugned in this revision. 27. It is made clear in case petitioner commit violation of the decree under execution in future, it not only will amount to disobedience of the decree under execution, it will also amount to violation of undertaking affidavit filed by petitioner before this Court. In such an eventuality the respondents/decree holder are at liberty to move either the executing Court or this Court in accordance with law. 28. The Civil Revision Petition is disposed of with the above modifications. Consequently, connected miscellaneous petition is closed. There shall be no further order as to costs. Registry is directed to preserve the undertaking affidavit dated 01.09.2022 filed by the petitioner.