Shivamurthy v. Dannammadevi Cycle Mart

N. Venkatachala, J.:—

By consent of learned Counsel, this revision petition is treated as having been posted for hearing and I have heard them.

2. In this revision petition under Section 115 of the Code of Civil Procedure, 1908 (for short ‘the Code’), the scope and ambit of Rule 32(1) of Order XXI of the Code, arise for decision.

3. Shivamurthy Mahalingappa Kuchanaur, the petitioner here, was the defendant in O.S No. 120/84, on the file of the Court of Munsiff at Banahatti, while the Dannammadevi Cycle Mart represented by its owner Basetteppa Shivarudrappa Sanakal, the respondent here, was the plaintiff therein. That suit had been instituted to restrain the defendant by means of perpetual injunction, from interfering with the plaintiff's alleged possession and enjoyment of a shop premises, C.T.S No. 1391, situated at Rabakavi and an ex-parte decree therein had come to be made on 30-4-1984 accordingly. The plaintiff, as decree - holder, sought to execute that decree against the defendant-judgment debtor in Execution Case No. 14/85 filed in the same Court. In that execution case, the decree-holder filed an interlocutory application, I.A.I under Rule 32(1) of Order XXI of the Code and prayed for enforcement of that decree against the defendant by ordering his detention in the civil prison. In that application, the decree-holder had alleged, inter alia, that on the night between 16th and 17th of March 1985 at about 3-00 or 4-00 P.M, the judgment debtor, his son—Sangappa and his family members, with the help of “goondas” engaged by the judgment debtor, broke open the lock put upon the door of the said shop premises; forced their entry into that premises; physically prevented the decree-holder from entering into that premises; and, thus, disobeyed the said decree for injunction rendering themselves liable for detention in the civil prison. The defendant, who appeared in that case through his Counsel, even before notice of the case had been served upon him, filed a statement of objections to the said interlocutory application urging, inter alia that he had neither knowledge of the ex-parte decree nor an opportunity to disobey it; that he was not the owner of the said shop premises respecting which injunction had been obtained against him; that the status of landlord attributed to him by the decree-holder in his suit was without any basis; that he being an aged person, was physically incapable of forcefully evicting the decree-holder from the shop premises; and that the detention order sought against him could not be obtained under Rule 32(1) of Order XXI of the Code without service of a prior notice upon him in that regard.

4. On the above rival contentions of the parties, the main point raised by the executing Court for its decision, was whether the judgment debtor against whom a decree for injunction had been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it as would require the executing Court to enforce that decree by ordering his detention in the civil prision. That point was answered in the affirmative and against the judgment debtor by the executing Court merely on the basis of rival arguments heard by it and not on the basis of any material placed before it by the parties. Consequently, it directed that the judgment debtor shall be kept in civil prison for one month and made an order accordingly. It is the validity of this order that has been challenged by the judgment debtor in this revision petition.

5. Shri S. Vijayshankar Learned Counsel for the petitioner (judgment debtor), contended that the executing Court had made the order under challenge, without a proper understanding and appreciation of the scope and ambit of sub-rule (1) of Rule 32 of Order XXI of the Code. He further contended that the conclusion reached by the executing Court that the judgment debtor had disobeyed the decree, was based merely on a surmise and not on any acceptable material and that being so, the executing Court had no jurisdiction to direct that the judgment debtor shall be kept in civil prison for one month. These contentions of the Learned Counsel in my view, are well founded and deserve to be upheld for reasons which I shall presently state.

6. Sub-rule (1) of Rule 32 of Order 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 wilfully failed to obey it, the decree my 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 wilfully 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 person has had an opportunity of obeying the decree and yet has wilfully disobeyed it.

7. If regard is had to the above scope and ambit of the sub-rule, it follows that the executing Court required to execute the decree for injunction against the person bound by that decree, by ordering his detention, cannot do so without recording a finding on the basis of the materials to be produced by the person seeking the execution of the decree that the person bound by the decree, though has had an opportunity of obeying the decree, has wilfully failed to obey it, as a condition precedent. Hence, what is required of the person seeking execution of the decree for injunction under the sub-rule is to place materials before the executing Court as would enable it to conclude (i) that the person bound by the decree, was fully aware of the terms of the decree and its binding nature upon him; and (ii) that person has had an opportunity of obeying such decree, but has wilfully, i.e, consciously and deliberately, disobeyed such decree, so that it can make an order of his detention as sought for. Thus, the onus of placing materials before the executing Court for enabling it to record a finding that the person against whom the order of detention is sought, has had an opportunity of obeying the decree for injunction, but has wilfully disobeyed it, lies on the person seeking such order of detention, lest the person seeking deprivation of the liberty of another cannot do so without fully satisfying the Court about its need.

8. In the instant case, the executing Court has proceeded to make the order of detention against the petitioner, when there was absolutely no material placed by the respondent to satisfy it that the petitioner has had an opportunity of obeying the decree for injunction, but has wilfully disobeyed it. In fact, the order of detention made by the Court is based on a surmise - “if the judgment debtor (petitioner here) has not forcibly evicted the present decree-holder (respondent here), then he would not have filed such an application against the judgment debtor to be kept in civil prison.” Hence, the order of detention made by the executing Court cannot be sustained and is liable to be set aside.

9. In the result, I allow this revision Petition, set aside the order on I.A.I under revision and direct the Court of Munsiff at Banahatti to call upon the decree-holder (respondent here) to produce material in support of his prayer in the application for an order of detention sought against the judgment debtor (petitioner here) and afford the judgment debtor an opportunity of controverting such material, if he so chooses, and then decide the application, I.A.I No costs.