Citation Codes

Equivalent Citations

citation codes

Case Number

C.R Appln. No. 263 of 2000

Advocates

P.A Kholkar
None for the respondent.

Judges

V.C Daga, J.

Acts

Order 21, Rule 32. Order 21, Rule 32 read with section 51 of the Civil Procedure Code
provisions of Order 21, Rule 32 read with section 51 of the Civil Procedure Code
Order 21 Rule 4 of the Code of Civil Procedure (the C.P.C for short),
Order 21, Rule 32 read with section 51 Civil Procedure Code
Order 21, Rule 32(1) Civil Procedure Code
SECTION 51 CIVIL PROCEDURE CODE

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Smart Summary

Legal Opinion — Structured Summary

Factual and Procedural Background

This revision petition challenges an Order dated 28th June, 2000 passed by the Civil Judge, Senior Division, Ponda, in Execution Application No. 7/99.A, which arose out of execution of a decree passed in Regular Civil Suit No. 36/92. The original decree granted a permanent injunction restraining the defendant, his relations, servants and agents from interfering with the suit property bearing survey No. 206/4 known as "DAIMODEM", situated at Bandora.

In execution proceedings the decree-holder applied under Order 21 Rule 4 CPC for attachment and sale of the judgment-debtor's property and informed the Executing Court that the judgment-debtor had trespassed into the suit property despite the injunction. This led to detention of the judgment-debtor in civil prison for 15 days. After release, the judgment-debtor allegedly again breached the permanent injunction with the assistance of two sons, prompting the decree-holder to seek further action (including detention). The Executing Court dismissed the subsequent execution petition on the ground that the judgment-debtor could not be detained on a second occasion because the relief was barred by constructive res judicata. That dismissal is the subject-matter of the present revision petition.

Legal Issues Presented

Whether the detention of the judgment-debtor in civil prison for having committed breach of the decree of permanent injunction tantamounts to satisfaction of the decree obtained by the decree-holder?
Whether the Executing Court is helpless to implement the decree even if the judgment-debtor keeps on committing repeated and successive breaches thereof?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shionarayan Jaiswal v. Ramdhani Choudhari, Contempt Petition No. 72 of 1988 (Division Bench, Nagpur Bench, 30th November, 1988) (unreported)	Principle that imprisonment or detention for breach/undertaking does not bar fresh proceedings for subsequent breaches; each breach is independent and actionable; courts may employ alternative coercive measures (e.g., restoration by coercive process, fines) if repeated imprisonment would serve no useful purpose.	The Court relied on this decision to demonstrate that imprisonment for a breach does not "satisfy" the decree or prevent subsequent proceedings for fresh breaches; it applied the precedent to hold that the Executing Court was wrong to apply constructive res judicata to bar further detention or coercive measures for subsequent breaches.

Court's Reasoning and Analysis

The Court began by referring to the statutory execution scheme for injunction decrees, specifically Order 21, Rule 32 read with Section 51 of the Civil Procedure Code (CPC). The Court extracted and relied upon the statutory text that where a party against whom a decree for injunction has been passed has had an opportunity to obey and has wilfully failed to obey it, the decree may be enforced by detention in civil prison, by attachment of property, or by both.

From the statutory scheme the Court drew these analytical conclusions:

The decree of injunction can only be executed by the modes prescribed under Order 21, Rule 32 read with Section 51 CPC; the statute contemplates detention, attachment, or both, and vests discretion in the Court with respect to simultaneous execution.
Detention or arrest without regard to the statutory scheme or without proper exercise of discretion (including consideration of other modes) would be improper. The power to detain should be exercised only when the breach is "wilful" and "intentional" — understood as want of bona fide — and the judgment-debtor has had an opportunity to obey the decree.
Detention in civil prison is a mode of enforcement (a coercive measure) intended to compel compliance; it is not a mode of satisfaction of the decree. Imprisonment does not extinguish or discharge the decree-holder's right under the injunction; the underlying obligation remains and can be enforced again if disobedience recurs.
Because imprisonment is only a method of compelling compliance, each fresh or successive breach is an independent actionable event. Prior detention does not give rise to constructive res judicata that bars further enforcement for a new breach.

Applying these principles to the facts, the Court observed that the judgment-debtor had been detained for 15 days earlier, but that detention had no effect in securing compliance — the judgment-debtor allegedly committed successive breaches thereafter. Therefore, the Court held that effective enforcement could include attachment and sale of property, or again detention (depending on circumstances and gravity), and that the Executing Court was not helpless to act, including against third parties (such as the sons) if they were abetting the breach and if proper proceedings were instituted against them.

The Court explicitly held that the Executing Court was wrong to apply the doctrine of constructive res judicata to prevent action on a subsequent breach. The Court referred to the cited Division Bench judgment to support the proposition that putting a person in civil prison once does not preclude proceeding for a subsequent breach.

Holding and Implications

REVISION PETITION DISMISSED.

Direct effect on parties:

The Court declared that detention in civil prison is a mode of enforcement and does not satisfy or extinguish the decree — compliance with the decree remains enforceable for future breaches.
The Executing Court cannot invoke constructive res judicata to bar fresh proceedings for subsequent breaches; each breach is independently actionable.
The Executing Court retains a range of enforcement remedies under Order 21, Rule 32 read with Section 51 CPC (detention, attachment, or both) and should exercise its discretion to secure compliance; attachment and sale of property is an effective option where detention proved ineffective, and detention may be resorted to again depending on the gravity of a fresh breach.
The Executing Court may take action against third parties (e.g., the sons) who abet breaches, provided proper proceedings are instituted.

Additional procedural/penal consequences noted in the opinion:

The Court directed the Executing Court to deal firmly with breaches to prevent erosion of respect for judicial orders and to maintain the rule of law.
The revision petition was disposed of "in terms of this Order with no order as to costs," and the opinion concludes with the statement "Revision petition dismissed."

No statement in the provided opinion claims the setting of a new binding precedent; the Court relied on statutory interpretation and an earlier Division Bench decision to reach its conclusions and to direct enforcement options available to executing courts.

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Yashodabai Ganesh Naik Gaunekar (Since Deceased Through L.R) v. Gopi Mukund Naik .

1. This case affords a further illustration, if further illustrations are required, of the confusion of our law and how the decree-holder had to suffer at the hands of the Court. The Executing Court disposed of execution proceedings in a very casual and cursory manner, taking a thoroughly untenable and unjust view not palatable to any judicial mind.

BRIEF FACTS

2. The brief narration of facts will be useful for correct appreciation of the issues involved in this case.

3. The source of this revision petition is the Order dated 28th June, 2000, passed by the Civil Judge, Senior Division, Ponda, in Execution Application No. 7/99.A, arising out of execution of decree passed in Regular Civil Suit No. 36/92, whereunder a decree for permanent injunction restraining the defendant, his relations, his servants and agents from interfering with the suit property bearing survey No. 206/4, known as “DAIMODEM”, situated at Bandora was passed.

4. It appears that the decree-holder, upon initiation of the execution proceedings against the Judgment-debtor preferred an application under Order 21 Rule 4 of the Code of Civil Procedure (the “C.P.C” for short), for attachment and sale of the property of the judgment-debtor. It further appears that the decree-holder also brought to the notice of the Executing Court that in spite of the decree of permanent injunction, the judgment-debtor trespassed into the suit property, which ultimately resulted in detention of the judgment-debtor in civil prison. He suffered civil imprisonment for 15 days. The said judgment-debtor again after release from civil prison, committed breach of the decree of permanent injunction with the help of his two sons, which appears to have compelled the decree-holder to seek further action against the judgment-debtor and his two sons, including action for detention of the judgment-debtor and his sons in civil prison. The Executing Court, after hearing the parties to the execution proceedings, dismissed the execution petition holding that the judgment-debtor cannot be detained in civil prison on second occasion as the relief is barred by constructive res judicata. The aforesaid Order of the Executing Court, is the subject-matter of challenge in this revision.

ISSUES TO BE DECIDED

5. On the backdrop of the above facts and on the canvass of the order passed by the Executing Court, the following issues need consideration:—

(i) Whether the detention of the judgment-debtor in civil prison for having committed breach of the decree of permanent injunction tantamounts to satisfaction of the decree obtained by the decree-holder? and

(ii) Whether the Executing Court is helpless to implement decree even if judgment-debtor keeps on committing repeated and successive breaches thereof?”

FINDINGS

6. Having heard parties, in order to answer the questions involved in this revision petition, one has to turn to the relevant part of the provisions of Order 21, Rule 32 read with section 51 of the Civil Procedure Code which reads as under:—

“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 and, 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.”

7. A perusal of the aforesaid provision of the Civil Procedure Code would demonstrate that the decree of injunction can only be executed in the manner prescribed under Order 21, Rule 32. Order 21, Rule 32 read with section 51 of the Civil Procedure Code is meant to enable the party to enforce the decree of the permanent injunction. Simultaneously, execution of both; the property and the person of the judgment-debtor, is allowed, but the Court has discretion to reject simultaneous execution. Under Order 21, Rule 32(1) Civil Procedure Code decree for injunction can be executed by detaining the judgment-debtor in the civil prison, or attachment of his property, or both.

8. The issue of warrant of arrest without satisfying the other modes of execution may not be a proper exercise of discretion on the part of the Executing Court. The execution by arrest or detention can be resorted to only if the breach is found to be wilful and intentional. “Wilful failure” means want of bona fide. “Wilful disobedience” of injunction decree by a party bound by it, makes it necessary for the Executing Court to exercise jurisdiction vested under the rule in accordance with law. The jurisdiction conferred under Order 21, Rule 32(1) Civil Procedure Code can be exercised only when the party against whom injunction has been passed, wilfully fails to obey it. No Court should resort to such drastic method to enforce decree unless there is a wilful failure to obey the decree. Before a decree for injunction made be enforced by attachment or imprisonment, it must be established that the judgment-debtor had an opportunity of obeying the injunction contained in the decree and has deliberately failed to obey it. Then the decree may be enforced by attachment of his property or by detaining the judgment-debtor in civil prison, but no order enforcing the decree by imprisonment should be made until the judgment-debtor had an opportunity of obeying the decree of permanent injunction. The scheme of the provision embodied under Order 21, Rule 32 read with section 51 Civil Procedure Code constitutes a complete mode of execution of decree of injunction, the details of which are already discussed hereinabove. Having examined the scheme of the Code in the matter of execution of decree, one thing is clear, that the law prescribes various modes of execution. The decree-holder has an option to seek any particular remedy prescribed by section 51 Civil Procedure Code.

9. With the aforesaid backdrop, turning to the facts of the present case on hand, it is clear that when the judgment-debtor has suffered civil imprisonment, it must have been on the satisfaction of the Court that the default on the part of the judgment-debtor was wilful, deliberate and intentional. A decree for permanent injunction has the effect of restraining the judgment-debtor permanently from obstructing the enjoyment of the property covered in the decree. Such a decree can only be satisfied by obeying it. In the event of its disobedience, it can always be put into execution. The decree has a permanent and perpetual life. It can be put into execution at any time to prevent breach or to prevent apprehended breach, subject to the law of limitation for the time being in force.

10. A distinction has to be drawn between the mode of enforcing decree on one hand and actual satisfaction thereof, sentencing a person to jail is a “mode of enforcement”. It is not a mode of satisfaction of the decree. The whole purpose of detaining a person in civil prison is to compel a person liable to obey the mandate of a decree who refused to comply with the terms of the decree without satisfactory cause. The purpose of sentencing him to jail is not to wipe out his liability to comply with the decree. A sentence of jail or detention of a person in civil prison, is no substitute for compliance of the decree. It is not a mode of discharging or satisfying a decree. The compliance of the decree can only be sought by resorting to these penal actions. The liability or obligation flowing from the decree cannot be taken to have been discharged by detaining a person liable to comply with the decree, to jail. At the cost of repetition, it may be stated that it is only a mode or method of implementation of a decree and/or mandate flowing therefrom. No other view is possible. That is the reason why I am inclined to set aside the impugned Order.

11. At this juncture, it will be useful to refer to the Division Bench Judgment of this Court delivered at Nagpur Bench in the case of Shionarayan Jaiswal v. Ramdhani Choudhari, in Contempt Petition No. 72 of 1988 on 30th November, 1988,(unreported) wherein the judgment-debtor having committed breach of the undertaking given to the Court, to vacate the suit premises underwent punishment by way of simple imprisonment for two months and paid fine of Rs. 500/-. After his release, when called upon to deliver vacant possession, he again on second occasion refused to vacate the suit block. Consequently, he was required to prefer another contempt petition for taking suitable action against the judgment-debtor for disobedience of the undertaking given by him to the Court. In spite of explaining the consequences, the respondent No. 1 in that case had decided to contest the contempt proceedings. The Division Bench after hearing the parties to the proceedings on merits, found that appropriate directions to close the breach of the undertaking given to the Court could be issued, but finding that no useful purpose would be served by tendering or putting the contemner in prison on second occasion, the Division Bench thought it better to issue directions for restoration of the possession of the suit property to the decree-holder by coercive process of law, with police assistance and imposed punishment of fine of Rs. 500/- for committing contempt of Court on second occasion. It is thus clear that it is not that once a person is made to suffer imprisonment or detention in civil prison, he cannot be proceeded with on second occasion for the fresh breach committed by him. Each breach is independent and is actionable in law. Merely by putting a person in civil prison the decree does not get wiped out or satisfied. The Executing Court was therefore absolutely wrong in applying the doctrine of constructive res judicata and holding that the judgment-debtor cannot be imprisoned on second occasion. The impugned Order of the Executing Court is unsustainable in law. The same deserves to be set aside.

12. With regard to the execution and/or implementation of the decree of permanent injunction is concerned, it appears that the civil imprisonment had no effect on the judgment-debtor. He was detained in civil prison for fifteen days. He suffered the said detention, but did not amend his attitude and ventured to commit successive breaches of the decree of injunction. The effective order against him could be by attachment of his property and in the event of persistent breach and the sale thereof. If no property is available for attachment, and if the judgment-debtor persists in committing deliberate and wilful breach of the permanent injunction, he may again be detained in civil prison, depending upon the gravity of the breach committed by him. Nobody can be allowed to take law in his own hands. Rule of law must prevail. The Executing Court is not helpless to take action against the sons in properly constituted proceedings if the Executing Court finds that the sons of the judgment-debtor are abetting the breach of the decree for permanent injunction. If courts fail to get their orders implemented, the people will lose faith in the Judiciary. The Executing Court is directed to deal with the situation with stern hands and prevent breach of the decree of permanent injunction.

13. The revision petition stands disposed of in terms of this Order with no order as to costs.

Revision petition dismissed.

Yashodabai Ganesh Naik Gaunekar (Since Deceased Through L.R) v. Gopi Mukund Naik .

Legal Opinion — Structured Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Yashodabai Ganesh Naik Gaunekar (Since Deceased Through L.R) v. Gopi Mukund Naik .

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