Andhra HC (Pre-Telangana)
Dodla Narayana vs Velti Reddemma on 28 June, 1989
Equivalent citations: AIR1990AP147, AIR 1990 ANDHRA PRADESH 147
ORDER Amareswari, J.
1. This revision arises out of execution proceedings. Petitioner is the judgment debtor. The respondent filed O.S. 125/73 on the file of the District Munsif, Tadepaltegudem for a permanent injunction restraining the petitioner from interfering with his possession of the suit property which is an open land of 1060 sq. yards. The suit was decreed oh 10-12-1974. The appeal by the defendant was dismissed on 6-2-1979- The respondcnt-decree-holder filed E.P. 344/82 and applied for detention of the judgment-debtor under Or. 21 R. 32, alleging that he interferred with the possession of the plaintiff on IO-7-l82. The E.P. was filed on 20-8-1982. By order dated 6-9-1984, the petition- was allowed and an order was passed directing detention of the judgment debtor into Civil Prison. He was sent to prison on 18-9-1984 and was released by the Superintendent, Central Jail afler three months, i.e. after 17-3-1984. Again, the decree-holder filed E. P. 34/85 for arrest of the judgment-debtor. Even without notice, the petition was allowed on 15-12-1985. However, the said order was set aside in CRP 701 / 85 on the ground that no notice was given to the judgment-debtor, and that it was open to the decree holder to file a fresh E.P. if he chooses. Then the decree-holder filed.E.P. 79/86, out of which the present revision arises, on 2-6-1986, for the same relief, i.e. for arrest and detention in civil prison. By order dated 11th September, 1987, the learned Additional District Munsif, Tadepallegudem allowed the petition and directed the judgment-debtor to be arrested and committed to civil prison, till he obeys the decreed. Aggrieved thereby, the judgment-debtor has filed the present revision. The case same up before a learned single Judge in the first instance, who referred the same to the Division Bench. The main contention advanced was that the judgment-debtor cannot be detained in execution of a decree for permanent injunction for more than three months. The learned Judge referred the question to the Division Bench, as this is a question of importance and likely to arise frequently. That is how the matter is before us.
2. The sole question for consideration is whether in a decree for execution of a prohi-bitary injunction, the judgment-debtor can be detained in a civil prison for more than three months. To decide this question, it is necessary to refer to the provisions of Section 51 and section 58 and Order 21, Rule 32 CPC. Order 21 Rule 32 CPC is as follows :--
"32. Decree for specific performance for restitution of conjugal rights, or for an injunction.
'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 maybe 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.'
3. Sub-Rule 2 deals with the case where the Corporation is the judgment-debtor, and it is not material for our purpose. It is plain hum this Rule, i.e.. from sub-Rule 1 of Rule 32 that decree for a prohibitory injunction may be enforced cither by attachment of properly or by detention in the civil prison of the judgment-debtor. Similarly, Rule 30 deals with a case where the decree is for payment of money. The decree can be enforced either by attachment of property or by detention in the civil prison of the judgment-debtor or both.
Both Rules 30 and 32 deal with mode of execution. Infact, the heading of these Rules is 'mode of execution'. Neither Rule 30 nor Rule 32 prescribe any period for which the judgment debtor can be detained. The other provisions which are relevant are sections 51 and 58 C.P.C. Section 51 CPC is as follows :
51. Powers of Court to enforce execution:
Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree
a) by delivery of any property specifically decreed;
b) by attachment and sale or by sale without attachment of any property;
c) by arrest and detention in prison (for such period not exceed ing the period specified in section 58, where arrest and detention is permissible under that section);
d) by appointing a receiver; or
e) in such other manner as the nature of the relief granted may require:
4. Clause (c) deals with period of detention. It says that the period of detention shall not exceed the period specified in section 58, where arrest and detention is permissible under that section. Section 51 deals with enforcement of execution of adecree. Section 58 CPC deals with detention and release,. It says:
58. Detention and release: (1) Even person detained in the civil prison in execution of a decree shall be so detained -
(a) where the decree is for the payment of a sum of money exceeding one thousand rupees, for a period not exceeding three months, and,
(b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees, for a period not exceeding six weeks;
Provided that he shall be released from such detention before the expiration of the said period of detention -
(i) on the amount mentioned in the warrant for his detention being paid to the officer in-charge of the civil prison, or
(ii) on the decree against him being otherwise fully satisfied, or
(iii) on the request of the person on whose application he has been so detained, or
(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance:
Provided also, that he shall not be released from such detention under clause (ii) or clause (iii) without the order of the Court.
5. It is seen from section 58 that the maximum period of detention under this' section is three months; and if it is a money decree of Rs. 500/ - and above but not exceeding Rs. 1,000/-, the maximum period is six weeks. Sub-clauses 1, 2, 3 and 4 provide for release of the person detained even before the expiry of the said period in the circumstances mentioned therein. Rule 1(a), prohibits arrest and detention in case where the decree is for payment of money, not exceeding Rs. 500/-.
Thus, under clause 1(a), if it is a decree for less than Rs. 500/- no judgment-debtor can be detained. Thus, it is seen that the maximum period that is prescribed under section 58 CPC is three months and in case if the decree is less than Rs. 1,000/- and more than Rs. 500/- it is six weeks and if it is less than Rs. 500/-, no detention at all. Section 58 is amended in 1976 by the CPC Amendment Act of 1976. Prior to the amendment, where the decree is for payment of sum of money exceeding Rs. 50/-, there was no discretion to the Court and the period prescribed was 6 months and in. any other case it was six weeks. Clause (a) is amended providing for detention reducing the period of detention to three months and Clause 1b) is substituted, to say in case where the decree is for more than Rs.500/- and less than Rs. 1,000/-, the maximum period is six weeks. Thus, by the amendment Act of 1976, the Legislature prescribed a lesser period of detention in prison in execution of a civil decree. While under the un-amended section, the period was prescribed as six months in one case and six weeks in another case; now a ceiling is fixed as Ithree months in one case and six weeks in another case. The Court has a discretion to order arrest even for a lesser period but it shall not exceed the period of 3 months or six weeks as the case may be. From the objects and reasons of this amendment, it is clear that it is brought about with a view to give a discretion to the Court as to the term for which a person may be detained in civil prison by providing the ceiling limit. It is obvious that the Legislature intended to reduce the period contained in the un-amended section. Reading sections 51 and 58 together, we are convinced that the maximum period prescribed under section 58 is three months and in case where the decree is for money for less than Rs. 1,000/- and more than Rs. 500/- it is six weeks", and if it is less than Rs. 500/- no detention at all. It is strenousty contended by Mr. Durga Prasad that section 58 applies only to money decrees, and not to other decrees. We are unable to agree with this submission. Section 58 starts with saying "every person detained in civil prison in execution of a decree shall be detained...." The word used in the main section is "decree", and not "money decree" though it prescribes different periods for different money decrees. Section 58 applies to all decrees is also evidence from section 51, which uses the expression "execution of a decree". Clause (c) of Section 51 refers to arrest and detention in civil prison for such period not exceeding the period specified in section 58. Reading sections 51 and 58, it is clear that they relate to enforcement of civil decree including a money decree. As section 51(c) refers to arrest and detention for such period not exceeding the period specified in section 58, and it refers to the execution of decrees in general, it must be held that the maximum period prescribed in section 58 is three months in the case of all decrees subject to limitations prescribed under section 58, in respect of money decrees. It is true, as argued by Mr. Durga Prasad that prior to amendment, clause (b) of section 58 said "in any other case", which would undoubtedly include all decrees. But the amendment does not make any difference. Merely because the words used in Clause (b) relate to a money decree, it cannot be said that after the amendment, section 58 deals only with money decrees: Section 58 read with section 51 clause (c) which is also amended, by including the words "for such period not exceeding the period specified in section 58" deals with all decrees including money decrees. It is true that the decision reported in Parbhatbhai v. Arwind Kumar supports the contention advanced by Mr. Durga Prasad. With great respect, we are unable to.agree with the reasoning of the Gujarat High Court. The learned Judges have not referred to section 51(c) as amended which specifically refers to detention for such period not exceeding the period specified in section 58. Even in the case of a money decree of several lakhs, the judgment-debtor cannot be detained for more than three months. We see no reason to think that the Legislature has not provided for any period in the case of decrees for prohibitory injunctions. In this context, we may also refer to Order 39 Rule 2-A, which reads as follows:--
2-A. Consequence of dis-obedience or breach of injunction:
(1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
6. This section, no doubt, deals with disobedience of injunctions granted in interlocutory applications pending the suit. Even in such a case, the maximum period for which the person can be detained is three months. There is absolutely no reason to prescribe an unlimited period in the case of decrees for prohibitory injunctions. It is not as though the suits are disposed of within three months. If a person who disobeys the injunction cannot be detained for more than 3 months during the pendency of the suit even if he interferes with the possession thereafter, there is no reason why a person should be detained for unlimited period of time in execution of a decree for injunction. The amendment of section 58 is to reduce the rigor and provide for a lesser period of detention rather than to enhance it. Under the unamcnded section, in case of a prohibitory injunction, the judgment-debtor could have been detained only for a period of six weeks. The amendment, which was intended to reduce the period of detention cannot be construed to have prescribed an unlimited period. A reference to Clause (2) of section 58 would also be appropriate in this connection.
(2) A judgment-debtor released from detention under this' section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.
7. Here, again, the word used in 'decree' and clause (2) prohibits the arrest of judgment-debtor for more than one time. liven if the firsl order was for a period less than the meximum prescribed, the judgment-debtor cannot be arrested for a second time. This is also an indication to show that liberty of a person cannot be interfered with in execution of civil decrees more than once. The arrest is not the only method by which the decree can be enforced; there are other modes like attachment of properties etc. Article 21 of the Constitution suggests the question whether it is a fair procedure to deprive a person of his personal liberty for not obeying a decree for which other modes of execution are also provided. Section 58 must be construed in a reasonable and fair manner, having regard to the object and reason, on a combined reading of sections 51 and 58, we are of the view that in execution of a decree bar prohibitory injunction under Order 21 Rule 32, the judgment-debtor cannot be detained in a civil prison for more than three months, and more than one time. Even otherwise, the matter is left to the discretion of the Court, and it would be a sound exercise of discretion to treat him on par with the other judgment-debtors and the detention cannot exceed the period of three months. In the present case, the judgment-debtor had already been detained for a period of three months and the order of the Court below ordering detention till he obeys the decree is contrary to the provisions of sect ions 51 and 58 of the Act read with Order 21 Rule 32, besides being arbitrary.
8. It is then strenously contended by Mr. Durga Prasad that since he took possession in violation of decree for injunction, the judgment-debtor may be directed to handover possession to the decree-holder. In support of his contention, he relied upon Bagicha Singh v. SubaSingh, and Harihar Pandcy v. Mangala Prasad Singh, and two un-reporled judgments of this Court. The learned counsel for the petitioner-judgment-debtor relied upon E. V. Subbayya v. S. Veerayya, wherein it was held that on the basis of a fresh cause of action, a separate suit has to be filed. We think it is unnecessary to go into this question, as the present decree-holder had already filed a suit O.S. 54/86 for recovery of possession, on the basis of title. In view of this, we do not deem it fit to make any order in this regard, at this stage. Hut we direct the Subordinate Judge, Tadepalligudem to dispose of O.S. 54/86 on or before 31st December, 1989.
9. In the result, the C.R.P. is allowed, and the order of detention is set aside. No costs,
10. Petition allowed.