Kerala High Court
Valsamma vs Abraham on 30 November, 2012
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 30TH DAY OF NOVEMBER 2012/9TH AGRAHAYANA 1934
CRP.No. 104 of 2008 ( )
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EP.49/2006 of MUNSIF COURT, KANJIRAPPALLY
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REVISION PETITIONER(S)/JUDGEMENT DEBTORS/DEFENDANTS 2, 3 & 5:
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1. VALSAMMA, W/O.GOPI, ELANKAVUNKAL HOUSE,
KARIMBUKAYAM BHAGOM, CHENAPPADY KARA
KOOVAPPALLY VILLAGE.
2. GOPI, ELANKAVUNKAL HOUSE,
KARIMBUKAYAM BHAGOM, CHENAPPADY KARA
KOOVAPPALLY VILLAGE.
3. ANIL MATHEW @ NOBLE, KUNNAPPLY, 19TH
MILE, VAZHOOR VILLAGE, VAZHOOR MURI.
BY ADV. SRI.BECHU KURIAN THOMAS
RESPONDENT(S)/DECREE HOLDERS/PLAINTIFFS:
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1. ABRAHAM, S/O.THOMAS, MUTTATHU,
CHENAPPADY KARA, KOOVAPPALLY VILLAGE.
2. PRATHEESH, S/O.THOMAS, MUTTATHU,
CHENAPPADY KARA, KOOVAPPALLY VILLAGE.
R1,R2 BY ADV. SRI.V.C.JAMES
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
30-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SD
C R
K.HARILAL, J.
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C.R.P.No.104 of 2008
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Dated this the 30th day of November, 2012
O R D E R
Whether the execution court is empowered under Order 21 Rule 32 to proceed against and punish contumacious Judgment debtors who have violated or disobeyed a decree for prohibitory injunction? In other words, whether the proceedings under the Contempt of Courts Act, 1947 is a proper remedy against violation of a decree for prohibitory injunction? These are the basic questions that arise for consideration in this Revision.
3. This Revision Petition is preferred against the order dated 03.01.2008 in E.P.No.49/2006 in O.S.No.15/2004 on the file of the Munsiff Court, Kanjirappally, by virtue of which the Revision Petitioners have been directed to be detained in civil prison for a period of one month for the alleged violation of the decree in O.S.No.15/2004. The impugned order was passed on an application under Order 21 Rule 32 of the Code of Civil Procedure.
4. The Revision Petitioners are the Judgment debtors 2, 3 and 5 and respondents 1 and 2 are the decree holders in the above and execution petition.
C.R.P.No.104 of 2008 2
5. As per the Judgment passed in the above suit, the Revision Petitioners are restrained from cutting open a new road through the plaint schedule properties and from widening item No.3 road, doing anything that will cause damage to the plaint schedule properties and from committing any act of waste in the plaint schedule properties.
6. The averment in the EP is that pursuant to the Judgment and decree, on 26.11.2006 at 11 a.m. the Revision Petitioners herein and 4 others trespassed into decree schedule item No.3 road, widened the same and also committed waste on the pathway by clearing the same and cutting plants cultivated therein. They sought for prosecution proceedings against the Revision Petitioners under Order 21 Rule 32 of the Code of Civil Procedure. Revision Petitioners 1 to 3 filed an objection by contending that they have not violated the decree passed in the above case.
7. On the side of respondents, PW1 and PW2 were examined and Exts. A1 to A5 were marked. DW1 to DW3 were examined on the side of the Revision Petitioners. The Commission Report and rough sketch were marked as Exts.C1 C.R.P.No.104 of 2008 3 and C1(a) respectively. After analysing the evidence, the court below found that the Revision Petitioners had violated the decree and they have been ordered to be detained in civil prison for one month each for the violation of the decree. Hence this Revision Petition is filed challenging the impugned order mainly on three grounds. (1). The petition under Order 21 Rule 32 of the CPC is not maintainable for prosecuting the Judgment debtors for the violation or disobedience of a decree for injunction. If the violation or disobedience of a decree for injunction is sought to be visited with punitive consequences, the only remedy available in law to the decree holder is to initiate proceedings under Contempt of Courts Act,1947. (2). Even if the petition is maintainable, the court below went wrong in considering the scheme envisaged under Order 21 Rule 32 of the CPC in its correct perspective. The Judgment debtor who violates or disobeys the decree must be visited with detention in civil prison or by attachment of his property or by both. But the court below has not considered the possibility of attachment of property, though the decree holder has prayed for the same and produced details of defendants' property. (3). The standard of C.R.P.No.104 of 2008 4 proof required to prove the act of violation or disobedience of a prohibitory decree is on a par with standard of proof required to prove guilt of an accused in criminal cases. Here, there is no independent corroborative evidence to support the evidence of decree holder.
8. First of all, I shall deal with the basic questions, challenging the maintainability of the petition under Order 21 Rule 32 of the CPC, from which the impugned order was passed and the competency and jurisdiction of the court which passed the impugned order. Let us examine, what does Order 21 Rule 32 of the CPC stipulate? According to Order 21 Rule 32 where a party against whom a decree for an injunction has been passed, had an opportunity of obeying the decree and he has willfully failed to obey it, the decree may be enforced by his detention in the civil prison, or by attachment of his property or by both.
9. The learned counsel for the petitioner Shri Bechu Kurian Thomas cited the decision in Narayani v. Thankappan (1991 (2) KLT 704), and argued that if violation or disobedience of a decree for injunction is sought to be visited with punitive consequence, the only remedy available to the decree holder is C.R.P.No.104 of 2008 5 to initiate proceedings under the Contempt of Courts Act and for that a petition under Order 21 Rule 32 will not lie. The relevant portion of the decision laid down in 1991 (2) KLT 704 (cited supra) is extracted below :-
"But Order 21 Rule 32 is not intended to punish a contumacious party. The said rule can be invoked only for enforcement of a decree. Detention in civil prison or attachment of property can be resorted to only so long as the decree stands unenforced. Once a decree has been enforced, or complied with the Judgment debtor is not liable to be detained in prison and his property is not liable to be attached under Rule 32(1). During detention of Judgment debtor in civil prison for enforcement of a decree if it is reported that the decree has since been enforced the Judgment debtor is entitled to be released forthwith. For what took place in the past he cannot be retained in prison for any further period under Order 21 Rule 32. If violation or disobedience of a decree for injunction is sought to be visited with punitive consequences, the only remedy available in law, as matters stand at present, is to initiate proceedings under the law of Contempt of Courts against the person concerned. There is no other provision for imposing punishment for disobedience of a term or command contained in a decree for injunction, prohibitory or mandatory".
10. Later, Shri Bechu Kurian Thomas himself fairly drew my attention to the recent decision of the Supreme Court in Kanwar Singh Saini v. High Court of Delhi (2011 (4) KHC SN I) but took an exception by contending that the said dictum C.R.P.No.104 of 2008 6 is an 'obiter dictum'. In the above decisions, Supreme Court held as follows :-
"In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution Court under Order 21 Rule 32 of C.P.C which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross- examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order 39 Rule 2A of C.P.C is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21 Rule 32 of C.P.C and resort to the contempt proceedings for the reason that the Court has to exercise its discretion under the Act 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings".
11. In clarification of the above proposition, the Apex Court further held that in case there is a final order, the remedy lies in execution and not in an action for contempt or disobedience or breach under Order 39 Rule 2A. Where a decree is for an injunction and the party against whom it has been passed has C.R.P.No.104 of 2008 7 willfully disobeyed it, the same may be executed by attachment of his property or by detention in civil prison or by both. The provisions of Order 21 Rule 32 of C.P.C. applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do same act and also cases where he is abstained from doing an act. To put it differently, a person disobeys an order of injunction not only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. The Court cannot derive jurisdiction apart from the statute.
Obiter dictum and ratio decidendi
12. I shall deal with contention that the said decision is 'obiter dictum'. According to Article 141 of the Constitution, the law declared by the Supreme Court shall be binding on all courts within the territory of India. It is an essential function of the Supreme Court to interpret legislation. Pronouncements of law which are not part of the 'ratio decidendi' are classed as 'obiter dicta' and are not authoritative. Quotability of law applies principle of a case. The principle of a decision is to be found out upon reading of Judgment as a whole in the light of the question C.R.P.No.104 of 2008 8 before the court. In the course of the argument and decision of a case, not infrequently many incidental questions arise which may be indirectly connected with the main question for consideration. The observations on such questions whether they be casual or of collateral relevance are known as 'obiter dicta'. According to Wharton's Law Dictionary, 'obiter dictum' means an observation which is either not necessary for the decision of the case or does not relate to the material facts in issue. 'Ratio decidendi' is the rule deducible from the application of law or the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. In other words, an 'obiter dictum' as distinguished from 'ratio decidendi' is an observation by the court on a legal question suggested in a case before it but not arising in such a manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced; but ratio decidnedi of a case can be extended to other identical situation factual and legal.
13. In view of the above parameters, I have examined the contention of the learned counsel for the petitioner that above C.R.P.No.104 of 2008 9 dictum is an 'obiter dictum'. I am unable to accept the above contention. In the above decision, the findings are conscious declaration of law on a point whether the proceedings under Contempt of Courts Act under 1947 is maintainable for violation of a decree for permanent prohibitory injunction. The Apex Court declared that it is not maintainable under the Contempt of Courts Act, 1947 and it is maintainable before the execution court under Order 21 Rule 32 only. I find that indisputably, it is the ratio decidendi of that decision. With great respect, I find that the decision laid down in 1991 (2) KLT 704 (cited supra) is not liable to be followed in view of the later above said Supreme Court decision, which is liable to be followed under Article 141 of the Constitution of India.
14. Where a party is directed not to do an act and if he does that in violation of the direction, it amounts to failure to obey the direction as contemplated under Order 21 Rule 32(1) of the CPC. Similarly if the Court punishes him with detention in civil prison or attachment and sale of his property or direction to pay compensation, it amounts to an enforcing factor to obey the prohibitory decree in future and it comes under enforcement of C.R.P.No.104 of 2008 10 decree contemplated under Order 21 Rule 32(1). This principle is also deducible under Order 21 Rule 32 of the CPC.
15. At this juncture, I notice an earlier decision of this Court in Paul Alias Varkey v. Cheeran Narayanan (1968 KLT 711), expressing the same view as that of the decision of the Apex Court, referred above. This Court held that :
"It is not easy to understand how the judgment-debtor in this case can contend that since the injunction granted against him was merely in the nature of a prohibition, and not mandatory, the executing court cannot find him guilty of having disobeyed it, although it was satisfied that he had done the very thing which he was forbidden from doing. The decree-holder was therefore clearly entitled to ask the executing court to direct the judgment-debtor to obey the injunction and in default to commit him to civil prison".
(emphasis supplied)
16. Therefore in view of the above decision laid down by the Supreme Court, I find that the execution court is empowered under Order 21 Rule 32 of the CPC to proceed against and punish a contumacious Judgment debtors who have violated or disobeyed a decree for prohibitory injunction and proceedings under the Contempt of Courts Act is not maintainable for the purpose. So I find that the petition on which the impugned order is passed is maintainable, and the Court which passed the C.R.P.No.104 of 2008 11 impugned order has jurisdiction and competency to act upon it.
17. Secondly, the counsel for the petitioner pointed out that the court below considered the detention of civil prison only, disregarding the option of attachment and sale of property, despite the specific prayer to that effect and that amounts to procedural irregularity causing injustice and prejudice. The learned counsel cited the decision in Gopinathan Pillai v. Rajappan (2011 (1) KLT 59), wherein this Court considered identical set of facts.
18. Going by Order 21 Rule 32, it could be seen that the procedure to be followed on an application under Order 21 Rule 32 is specifically envisaged under Sub Rules (1)(3) and (5). The decree holder who is aggrieved by the violation of a prohibitory decree for injunction can ask for detention of the Judgment debtor in civil prison or attachment of his property or both and court can order either or both of these things to be done. So in case of causing damage and waste in violation of a decree, the decree holder gets an opportunity to apply for sale of attached property if the judgment debtor has not obeyed the decree and out of the sale proceeds, the Court can award compensation as it C.R.P.No.104 of 2008 12 thinks fit, under Sub rule (3). This Court in the decision in 2011 (1) KLT 59 (cited supra), wherein facts are similar to that of the instant case held as follows :-
"In certain other cases an act of violation by the judgment debtor cannot be corrected and the decree holder put in the same position as he would have occupied but for the violation. For example, cutting and removing of trees. If in violation of a decree for injunction, the trees in the plaint schedule property are cut and removed, there could be no enforcement of the decree in its literal sense. Even if the property of the judgment debtor is attached and kept alive for six months, he would not be in a position to obey the decree and restore the trees. The result would be sale of the property and award of compensation as provided in sub-r.(3). Even if the violation is not so grave, the consequence would be grave, since the court would be bound to sell the property after six months in such a case as the judgment debtor would be incapable of undoing the mischief which was done already. In such a case, is there anything wrong in the Court passing an order holding that the judgment debtor is liable to compensate the decree holder and in awarding compensation for the trees cut? Or, is it necessary and compulsory that the property of the judgment debtor should be attached and kept alive for six months with the only inevitable result of selling the same and realising the compensation? If such an interpretation is accepted, even for minor violation of cutting of a small tree, the judgment debtor would be liable to lose his property in order to make payment of a small amount of compensation. Is it not better and reasonable in such cases to fix the compensation and to attach the property, keep it C.R.P.No.104 of 2008 13 pending for six months enabling the judgment debtor who has violated the decree to pay off the amount and if not, to sell the same? I am of the view that such a course would be not only reasonable but pragmatic as well".
19. Thus even in the case of cutting of trees for widening the road, violating the prohibitory decree, executing court can fix the compensation, attach the property and keep it pending for six months enabling the Judgment debtor who has violated the decree to pay off the amount and sell the property if compensation is not paid.
20. Similarly, in such cases, as per Sub rule (5), court may in lieu or in addition to all or any of the process 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. Thus as observed in the above decision, the decree holder gets an opportunity for the restoration of the original position of the property, at the expense of the Judgment debtor who violated the decree.
21. To sum up : The decree holder gets an opportunity for compensation under Sub rule (3) and restoration of property C.R.P.No.104 of 2008 14 under Sub rule (5). Thus when there is a prayer for attachment and sale of property it is incumbent upon the court to attach the property and proceed in accordance with law as provided under Sub rule (3) and (5) also. Mere detention in the civil prison alone is not the purpose envisaged under Order 21 Rule 32 when the decree holder asked for attachment and sale of property also. But in the instant case, the learned Munsiff skipped the proceedings under Sub Rules (3) and (5) without sufficient reason and considered detention for violation of the decree, in the civil prison alone, as a punitive action, despite the prayer for attachment and sale of property, for which, Ext.A5 copy of the title deed of the 3rd Judgment debtor's property was produced. The learned Munsiff should have attached the property covered by Ext.A5 and proceeded under Sub Rules (3) and (5) before passing the final order, detaining the Judgment debtor to civil prison. Here, the decree holder is deprived of his valuable right of compensation and restoration of property in addition to the detention in civil prison. This is a procedural irregularity causing injustice and prejudice. Needless to say that an opportunity to compensate the decree holder and obey the C.R.P.No.104 of 2008 15 decree in a more reasonable and pragmatic way as observed in the above judgment, had been missed.
22. Let us examine the crucial question whether the revision petitioners have violated the decree passed against them as alleged in the petition. The original position of the way is brought out by Exts.A1 to A3. According to Ext.A1, pathway is having a length of 36 metres and average width of 3 feet. But Ext.C1 report shows that the original position of the way has been altered subsequent to the decree. DW3 Commissioner has categorically reported that the coffee plants, kudampuli, palm trees, pala, rose-wood tree and other cultivations have been destroyed. The existence of 26 stumps of the coffee tree has been reported. The age of the commission of the act of waste is 15 days. The mud cutting of the eastern kayyala has been destroyed at 3 points at a length of 30 feet. The pathway has been widened upto a width of 8 to 9 feet by way of trespass into item Nos.1 and 2 properties. I am satisfied from the commission report that there is a clear violation of the prohibitory injunction passed in the decree.
23. The next question is whether the respondents have C.R.P.No.104 of 2008 16 succeeded in proving that the revision petitioners have violated the prohibitory decree for injunction? The issue is, widening of a pathway which was being used by more than one or two persons and it is evidenced by Ext.A4 complaint filed by 10 persons. When more persons are interested in the widening of the way, cogent and convincing evidence is required to find out actual violators of the decree. The evidence of PW.1 is worthy of credit. But, PW2 is none other than the brother of PW1. But the learned Munsiff has not taken note of this fact. No independent witness was examined. Similarly in evidence, DW1 and DW2 put forward a case that the pathway was widened at the instance of Panchayath member and the same person had obtained their signature in Ext.A4. But no steps had been taken by either party to examine that crucial witness. His evidence also appears to be decisive to arrive on a conclusion finding guilt of the revision petitioners. On an over all weighing of oral evidence, I feel that more evidence as I indicated above is required to safely prove the alleged act of violation against the revision petitioners.
24. In the result of the above discussion, I set aside the impugned order and remand the case to the court which C.R.P.No.104 of 2008 17 passed the impugned order with the following terms and directions:
i) Attach and proceed against the property covered under Ext.A5 in compliance with Sub Rules (3) and (5) of Rule 32 of Order 21 of the C.P.C.also.
ii) The parties are at liberty to file fresh interlocutory applications and to adduce further evidence.
iii) The learned Munsiff shall pass an order afresh after considering further proceedings against property and further evidence, if any, within a period of three months.
iv) Parties are directed to appear before the Execution Court on 14.01.2013.
v) If parties are not present on that day, issue notice to them again and proceed after completion of service in accordance with law.
Sd/-
K.HARILAL, JUDGE RKM