Kerala High Court
Joseph vs George on 12 April, 2012
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934
CRP.No. 239 of 2009 (E)
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OS.110/2006 of PRL.M.C., KOCHI
REVISION PETITIONER/JUDGEMENT DEBTOR:
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JOSEPH, S/O.ATHIPOZHI BERNO,RESIDENT OF
FORTKOCHI VILLAGE,ST.JOHN PATTOM, KOCHI TALUK.
BY ADVS.SRI.DINESH R.SHENOY
SRI.V.V.UNNIKRISHNAN
SRI.A.JOSEPH GEORGE
SRI.G.HARIKRISHNAN (TRIPUNITHURA)
RESPONDENTS/DECREE HOLDERS:
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1. GEORGE, S/O.ARAKKAL BASTIAN,RESIDING AT
FORTKOCHI VILLAGE, ST.JOHN PATTOM DESOM
KOCHI TALUK.
2. SUSAN, W/O.GEORGE, -DO- -DO-
BY ADV. SRI.VINOD KUMAR.C
BY ADV. SRI.JOHN VARGHESE (VEYKKAN)
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
12-04-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
C.R.P.No.239/2009
I.A.No.912/2009
Dismissed.
Sd/-
K.T.SANKARAN, JUDGE
12/04/2012.
K.T.SANKARAN, J.
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C.R.P.No.239 of 2009
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Dated this the 12th day of April, 2012
ORDER
The petitioner is the judgment debtor in O.S.No.110 of 2006 on the file of the court of the Munsiff of Kochi. As per the order dated 06th March, 2009 in E.P.No.122 of 2008, the court below held that the petitioner violated the decree and locked a latrine causing inconvenience to the decree holders. The court below rejected the contentions raised by the judgment debtor. The court below held that the petitioner/judgment debtor shall be arrested and detained in civil prison for a period of three months in execution of the judgment and decree.
2. The plaint schedule property was purchased by the respondents from the petitioner. It has an extent of 2.525 cents. The petitioner had ownership and possession over 7.5 cents of land. Out of that total extent, he sold 2.525 cents on the western side of the property to the respondents. There was a compound wall on the western and northern sides of the property. Alleging that a portion of the property assigned to C.R.P.No.239/2009 : 2 : the respondents was trespassed upon by the petitioner, the respondents filed the suit. The suit was decreed by the trial court and the decree has become final. The respondents filed E.P.No.122 of 2008 under Rule 32 of Order XXI of the Code of Civil Procedure stating that the judgment debtor willfully violated the decree and locked the latrine situated on the north-western side of the property. The judgment debtor denied the allegation. He contented that the latrine is not part of the decree schedule property. In the reply affidavit filed by the respondents/decree holders, they stated that the latrine was newly constructed after the property was purchased from the petitioner. The judgment debtor trespassed upon the property and kept the latrine under lock and key. It is alleged that the judgment debtor continuously violated the decree.
3. Before the Executing Court, the first respondent was examined as PW.1 and Exts.A1 to A5 were marked in the case. The court below noticed that even at the time of the assignment of the property to the respondents, there was a compound wall on the western and northern sides. If the contention of the decree holder that a portion of the C.R.P.No.239/2009 : 3 : puramboke land is also included within the compound wall, necessarily mention should have been made to that effect in the assignment deed. Going by the boundaries of the assignment deed executed by the petitioner in favour of the respondents, the petitioner has not retained any property allegedly possessed by him on the western side, whether it is patta land or puramboke land. According to the judgment debtor, the latrine on the western side was an old one. Even assuming that it is so, since the latrine is situated within the area bounded by the compound wall, the petitioner has no right to enter into the property in the possession of the respondents. If he does so, it amounts to trespass. The court below noticed that the judgment debtor has stated in evidence that there is a compound wall on the western side and he entered into the latrine and locked the same after jumping over the compound wall. Going by the evidence in the case, it is clear that he violated the decree. The court below also noticed that an extent of 2.525 cents of land was assigned by the petitioner to the respondents but at present the respondents are in possession of only 2.446 cents of land. The court below held that the petitioner/judgment debtor was C.R.P.No.239/2009 : 4 : raising untenable contentions. The evidence tendered by the petitioner/judgment debtor would disclose that what is stated in his counter statement is not correct.
4. If the contentions put forward by the judgment debtor are accepted, there will be no end to litigation. The assignment deed executed in favour of the respondents do not indicate that the assignor (petitioner herein) had retained any portion of land in his possession on the western side of the property assigned. If so, the contentions raised by him in the execution proceedings are bereft of bonafides. These contentions are raised only to enable him to violate the decree and thereby to cause prejudice and inconvenience to the respondents. The court below, on a consideration of the facts and circumstances of the case, held that the petitioner violated the decree. That is a finding of fact based on evidence. I do not find any ground to interfere with the finding of fact rendered by the court below. The court below arrived at the finding on the basis of materials on record. There is nothing to indicate that the finding of the court below that the petitioner violated the decree, suffers from any jurisdictional error or error of law.
C.R.P.No.239/2009 : 5 :
5. After holding that the judgment debtor violated the decree, the court below held that he is liable to be arrested and detained in civil prison for a period of three months. The court below noticed that considering the "adamant nature of the judgment debtor and the continuous nuisance caused", the judgment debtor should be detained in civil prison for three months.
6. In 1991(2) KLT 704 Narayani Vs. Thankappan, it was held thus:-
"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 C.R.P.No.239/2009 : 6 : 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."
7. In 2011(2) KLT 59 Gopinathan Pillai Vs. Rajappan, it was held that:-
"11. Sub-rule (1) of R.32 of O.XXI provides that a decree for injunction may be enforced by detention of the judgment debtor in civil prison or by the attachment of his property, or by both. Sub-r.(3) provides as to what should be done after the attachment is effected. It provides that if the judgment debtor has not obeyed the decree even after the attachment remained in force for six months and if the decree holder has applied to have the attached property sold, such property may be sold. Sale of the property is not for realisation of any amount decreed. Such sale is for the purpose of awarding such compensation as the court thinks fit, out of the sale proceeds. Sub-r.(4) says that the attachment shall cease where the judgment debtor has obeyed the decree. Sub- r.(5) provides for another remedy for the decree holder, in lieu of or in addition to all or any of the processes as mentioned in sub-rules (1), (3) and (4). That remedy is either for a direction that the act required to be done may be done so far as practicable by the decree holder or C.R.P.No.239/2009 : 7 : some other person appointed by the Court, at the cost of the judgment debtor. The executing court would thereupon ascertain the expenses incurred for the same and recover it as if the same is included in the decree. Therefore, when an act is required to be done by the judgment debtor and even if it is not specifically provided in the decree that in case of failure a particular sum is required for the execution thereof or that a particular sum would be payable by the judgment debtor, the executing court would be entitled to direct to do the act required to be done at the cost of the judgment debtor and to recover the same from the judgment debtor. By a fiction, such expenses shall be treated to have been decreed though there is no such specific provision in the decree.
12. By the explanation to R.32, it is clarified that "the act required to be done" covers prohibitory as well as mandatory injunction. The expression "the act required to be done" is used only in sub-r.(5) and not in sub-rules (1), (3) and (4). Sub-r.(1) speaks of enforcement of the decree. Sub-r.(5) also provides for another method to enforce the decree though the expression "enforce" is not used and instead the expression "direct that the act required to be done may be done" is employed. This also amounts to enforcement. In view of the Explanation, there cannot be any doubt that sub-r.(1) also applies to prohibitory as well as mandatory injunction. I am of the view that the explanation is not confined to sub-r.(5) alone and it covers sub-rules (1) to (4) as well. Though the explanation seeks to explain the expression "the act required to be done" and though the expression "the act C.R.P.No.239/2009 : 8 : required to be done" is absent in sub-rules (1) to (4), the irresistible conclusion that could be arrived at is that the explanation covers all the sub-rules in R.32.
13. A decree for prohibitory injunction could be of different types. The nature of injunction may be different.
In the case of different situations sought to be met by an injunction, the defendant may be restrained from trespassing upon the property; or he may be restrained from committing waste or cutting trees or from obstructing the plaintiff from possessing and enjoying the property; or the defendant may be restrained from ousting the plaintiff from the property. Even a prohibitory injunction can be specifically enforced and the judgment debtors could be compelled to obey the decree. If the defendant is restrained from cutting open a way through the decree schedule property and if he does it in violation of the decree, the judgment debtor could be compelled to obey the decree and to restore the property to its original position, by attachment of the property of the judgment debtor as provided in R.32 of O.XXI, C.P.C. Such a decree could also be enforced and executed as provided in sub-r.(5) and the expenses could be realised from the judgment debtor. 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 C.R.P.No.239/2009 : 9 : 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 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."
8. In the light of the judgments referred to above, I am of the view that the direction to detain the judgment debtor in civil prison for a period of three months is illegal and very harsh. The only allegation against the judgment debtor is C.R.P.No.239/2009 : 10 : that he locked the latrine belonging to the decree holders. It is true that locking of latrine is a serious thing. At the same time, sending a person to civil prison should be resorted to as a last resort. The court below shall consider the matter afresh and pass appropriate orders in accordance with law to ensure that the decree is obeyed and not disobeyed at all.
Accordingly, the Civil Revision Petition is allowed in part and the direction to detain the petitioner in civil prison is set aside. The finding that the petitioner violated the decree is confirmed. The court below shall dispose of the matter afresh in accordance with law and in the light of the findings and observations made in this order.
K.T.SANKARAN, JUDGE skj