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Andhra High Court
P.Jayantha Rao And Another vs V.Venkateswarlu on 30 August, 2001

THE HON'BLE SRI JUSTICE P.S. NARAYANA

CIVIL REVISION PETITION No.1796 OF 1999

30-08-2001

P.Jayantha Rao and another

V.Venkateswarlu

COUNSEL FOR PETITIONER: MR.K.L.N. SWAMY

COUNSEL FOR RESPONDENT: MR.RAMESH KATINENI

:ORDER:

The Revision petitioners-Judgment debtors filed the present Revision aggrieved by the order of the learned Junior Civil Judge at Kodad, dated 22-3-1989 made in E.P.No.42/97 in O.S.No.258/91. For the purpose of convenience the parties will be referred to as 'Judgment-debtors' and 'Decree-holder'.

The Decree-holder-respondent herein filed E.P.No.42/97 in O.S.No.258/91 on the file of Junior Civil Judge, Kodad seeking the relief of attachment of the property of the Judgment-debtors and also detention in civil prison for violating the decree of permanent injunction obtained by him in O.S.no.258/91 on the file of Junior Civil Judge, Kodad dated 10-8-1992. The case of the Decree-holder is that inspite of the decree of perpetual injunction granted against the Judgment-debtors relating to the schedule property, on 1-4-1997 they had trespassed into the said property and also had attempted to make constructions thereon and when the Decree-holder resisted, the Judgment-debtors had threatened him with dire consequences. The Judgment-debtors have filed a counter stating that Order 21 Rule 37 C.P.C. is not applicable since the said provision can be invoked only in case of execution of money decrees and not otherwise and the decree passed in O.S.No.258/91 is a decree for perpetual injunction which is not executable under Order 21 Rule 37 C.P.C. and it was also further stated that the Judgment-debtors have never violated the decree of permanent injunction and it was also further stated that the 1st respondent is owner and the vendor of a piece of site in an extent of 52 sq.yards and the 2nd Judgment-debtor is the vendee thereof and the sale in favour of the 2nd Judgment-debtor is covered by a registered sale deed and the 2nd Judgment-debtor being the owner of 52 sq.yards, had constructed a house thereon and the said house was assessed by the Gram Panchayat, Kodad and he has been paying the tax also regularly to the Gram Panchayat and he had purchased the site in which he had constructed the house even prior to the filing of the suit within his boundary and they had never attempted or violated the decree at any point of time. On behalf of the Decree-holder, P.Ws.1 and 2 were examined and on behalf of the Judgment-debtors R.Ws.1 to 4 were examined and Exs.R-1 to Respondent-8 were marked. The Court below, after appreciating the oral and documentary evidence had arrived at a conclusion that there is wilful disobedience of the decree by the Judgment-debtors and had ordered their detention in civil prison for a period of one month and immovable properties of the Judgment-debtors 1 and 2, if any were ordered to be attached on furnishing the particulars of the properties by the Decree-holder and aggrieved by the same, the Judgment-debtors have filed the present Revision. Sri K.L.N. Swamy, representing the Revision Petitioners had made elaborate submissions why the impugned order is not sustainable in law. The learned counsel had contended that the decree was passed on 10-8-1992 and the E.P. was filed in 1997 and there was no notice prior to the filing of the E.P. for execution of the decree of permanent injunction and hence the impugned order is not sustainable for want or prior notice and for non-compliance of Order 21 Rule 22 C.P.C.The learned counsel also had contended that Order 21 Rule 37 C.P.C. is not applicable at all in the case of execution of a decree for permanent injunction. The learned counsel also had pointed out that there is dispute relating to the identity of the property and the Court below had erred in not arriving at the correct conclusion. The learned counsel also in alternative had contended that even if the E.P. is maintainable under Order 21 Rule 37 C.P.C. the ingredients necessary to be satisfied under Order 21 Rule 32 C.P.C. have not been satisfied. The learned counsel also had made an attempt to say that the decree for permanent injunction is not executable and hence the E.P. is not maintainable. The learned counsel placed reliance on A.VENKATASUBBAIAH NAIDU Vs. S.CHELLAPPAN AND OTHERS .

Sri Ramesh, representing the Decree-holder-respondent had supported the order stating that wilfully and deliberately the Judgment- debtors had violated the decree for perpetual injunction and it is the duty of the Court to maintain the dignity and the majesty of the Court and if the parties are allowed to violate the orders of the Court in such a fashion, the public will lose confidence in the very judicial system. It is no doubt true that when a decree for perpetual injunction is staring against the Judgment-debtors, they are bound to obey the same. It is no doubt the contention of the Judgment-debtors that the very identity of the property is in dispute. The Court below had recorded evidence on both sides and had recorded findings also.It is no doubt true that Order 21 Rule 37 C.P.C. is not applicable to the present case, but mere quoting of wrong provision of law, in my considered opinion, is of no consequence. Order 21 Rule 32 C.P.C., which is the relevant provision reads as follows:-

Decree for specific performance for restitution of conjugal rights, or for an injunction. (1) Where the party against whom a decree for the specific performanceof a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeyind the decree and has willfully 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 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. (2)Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3)Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds of the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the Judgment-debtor on his application.

(4)Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5)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 aforesaid, 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, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

The words "wilfully failed to obey it" in Order 21 Rule 32(1) C.P.C. clearly go to show that the disobedience must be wilful. The decision referred (1) supra, on which reliance was placed is not applicable to the facts and circumstances of the case since this is a matter relating to the execution of a decree for permanent injunction whereas the Apex Court was dealing with a matter relating to interim injunction under Order 39 Rule 1 and also Rules 3 and 3(A) C.P.C.The Court below no doubt had made a serious attempt to appreciate the oral and the documentary evidence, but the most crucial aspect had been lost sight of. Order 21 Rule 22(1)(a) C.P.C. says that where an application for execution is made more than two years after the date of the decree the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause on a date to be fixed why the decree should not be executed against him. No doubt, a proviso also is added to Order 21 Rule 22(1) C.P.C. It is no doubt true that the A.P. amendment specifies :

"Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the Judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him."

Order 21 Rule 22(2) specifies that nothing in sub-rule (1) shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. The proviso specifies

"Provided that no order for the execution of a decree shall be invalid owing to the omission of the Court to record its reasons unless the judgment-debtor has sustained, substantial injury as a result of such omission.

It is needless to mention that this is a matter relating to the execution for violation of a decree for permanent injunction, the consequence of which will be the detention of Judgment-debtors apart from attachment of their properties. Thus, this is a matter involving the liberty of the Judgment- debtors. While making an order of this nature, the Court below should have taken care to see that all the procedural formalities are followed. But however, it appears that straightaway the impugned order was made without issuing any show cause notice in accordance with the provisions of Order 21 Rule 22 C.P.C., which in my considered opinion had definitely caused prejudice to the Judgment-debtors. Since I am not inclined to go into the other merits and demerits of the matter, all the other questions are left open, but on the grounds specified above, I am inclined to set-aside the impugned order and remit the matter back to the Court below to be disposed of in accordance with law after complying with Order 21 Rule 22 C.P.C.

For the foregoing reasons, the impugned order dated 22-3-1999 made in E.P.No.42/97 in O.S.No.258/91 on the file of the Junior Civil Judge at Kodad, is hereby set-aside and the matter is remitted back to the Court below to be disposed of in accordance with law, after complying with all the procedural formalities as indicated above. The Civil Revision Petition is allowed to the extent indicated above. In the facts and circumstances of the case, no order as to costs.

?1.A.I.R. 2000 S.C. 3032