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2024 DIGILAW 597 (KER)

Suhara Beevi v. Sainudheen

2024-06-03

KAUSER EDAPPAGATH

body2024
ORDER : This Civil Revision Petition has been filed challenging Annexure 5 order passed by the Munsiff's Court, Varkala (for short ‘the execution court’) in E.P. No.15/2016 in O.S. No.99/2004, ordering delivery of the property. 2. The petitioner is the judgment debtor, and the respondent is the decree-holder in E.P. No.15/2016. As early as in 2004, a decree for permanent prohibitory injunction was passed against the petitioner, restraining her from trespassing into plaint A and B schedule properties and in the house bearing No.VIII/74-B of Edava Panchayath situated therein. According to the respondent, on 20.4.2015, the petitioner trespassed into the plaint-schedule house and occupied it, violating the decree. It was in these circumstances that the Execution Petition was filed. The prayer in the Execution Petition was to enforce the decree by detaining the petitioner in civil prison for wilful disobedience of the decree and to evict her from the plaint schedule house. In the Execution Petition, the petitioner took up a contention that since the decree was for permanent prohibitory injunction alone, the prayer in the Execution Petition to evict her from the plaint schedule house is not maintainable. The execution court overruled the said contention and delivery was ordered as per Annexure 5 order. It is challenging the said order; this Civil Revision Petition has been filed. 3. I have heard Sri. R. Santhosh, the learned counsel for the petitioner. 4. The learned counsel for the petitioner submitted that the execution court while enforcing a decree for permanent prohibitory injunction, can either detain the judgment debtor in a civil prison or attach her property as contemplated under Order 21 Rule 32 of the Code of Civil Procedure (for short C.P.C.) and it exceeded its jurisdiction by ordering the eviction of the petitioner from the plaint schedule house. 5. Rule 32 of Order 21 of C.P.C. provides modes of enforcement of decree for specific performance of contract, decree for injunction, and decree for restitution of conjugal rights. The rule provides for attachment of property of the judgment debtor and payment of sale proceeds to the decree holder as also detention of judgment debtor (except in case of decree for restitution of conjugal rights), or by both. The rule provides for attachment of property of the judgment debtor and payment of sale proceeds to the decree holder as also detention of judgment debtor (except in case of decree for restitution of conjugal rights), or by both. Apart from the arrest of the judgment debtor or attachment of his property, Sub-rule (5) of Rule 32 empowers the executing court to take appropriate action for enforcing the decree at the cost of the judgment debtor who willfully disobeys such decree. It says that, where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes stated in Sub-rules (1) to (4) of Rule 32, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor. The Explanation clarifies that the expression ‘the act required to be done’ covers prohibitory as well as mandatory injunctions. A judgment debtor disobeys a decree of injunction not only when he fails to perform an act that he is directed to do but also when he does an act that he is prohibited from doing. Thus, where a decree for permanent prohibitory injunction was passed restraining the judgment debtor from trespassing into the decree schedule property, and the judgment debtor subsequently trespassed into the property and remained in possession therein, the decree could be enforced by evicting the judgment debtor from the property. Sub-rule (5) of Rule 32 of Order 21 of C.P.C. gives such a power to the execution court. The petitioner has claimed in the objection statement filed to the Execution Petition that she is still in occupation of the decree schedule building. The claim itself is a proof of wilful disobedience of the decree. Hence, I find no illegality or impropriety in the impugned order deputing Amin for delivery of the property by evicting the petitioner. This Civil Revision Petition fails, and accordingly, it is dismissed.