Punjab-Haryana High Court
Mohinder Singh vs Karamvir And Others on 30 August, 2010
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 4817 of 2009 (O&M)
Date of Decision: August 30, 2010
Mohinder Singh
...Petitioner
Versus
Karamvir and others.
...Respondents
CORAM: HON'BLE MR. JUSTICE ALOK SINGH.
1. Whether reporters of local news papers may be
Allowed to see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the
Digest?
Present: Mr. G.S. Gill, Advocate,
for the petitioner.
Mr. K.S. Dhillon, Advocate,
for respondent No.1.
Mr. Rohit Ahuja, Advocate,
for respondent Nos. 2 to 5.
Alok Singh, J.
Present petition is filed challenging the order dated 04.06.2008 passed by the learned Additional Civil C.R. No. 4817 of 2009 2 Judge (Senior Division), Sultanpur Lodhi (Executing Court) as well as judgment/order dated 30.05.2009 passed by the learned Appellate Court/District Judge, Kapurthala, thereby execution application moved by the respondent - decree holder was allowed by the learned Executing Court and judgment debtor No.3 - Mohinder Singh - petitioner herein is ordered to be detained in civil imprisonment for a period of six months for violating the judgment and decree dated 04.10.1999.
The brief facts of the present case are that decree holder - plaintiff filed civil suit for declaration and permanent injunction regarding land measuring 12 kanals 14 marlas situated in Village Bhago Budha, Tehsil Sultanpur Lodhi, District Kapurthala and suit was decreed in favour of the decree holder - plaintiff on 04.10.1999. The judgment debtors were directed not to interfere in the possession of the plaintiff over the suit land. The plaintiff - decree holder moved an application under Order 21, Rule 32 C.P.C. saying that judgment debtors were having full knowledge of judgment and decree dated 04.10.1999. In violation of the judgment and decree they intentionally put the remains of wheat crop on fire and left water in the land, thereby interfered in the possession of the plaintiff. Both the Courts below having found judgment debtor - petitioner C.R. No. 4817 of 2009 3 herein guilty of putting wheat remains on fire and leaving water in the land in dispute, directed the civil imprisonment of the petitioner - judgment debtor.
Learned counsel for the petitioner - judgment debtor vehemently argued that it is not proved on record that Mohinder Singh - petitioner ever put remains of wheat crop on fire or ever entered into the property in dispute in violation of the decree. He further stated that plaintiff - decree holder is in peaceful possession and is cultivating the land without any interference from the side of the petitioner. He undertakes that in future also judgment debtor - petitioner shall not interfere in the possession of the plaintiff - decree holder and shall abide by the decree dated 04.10.1999.
Learned counsel for the decree-holder -
respondent states that both the Courts below have correctly found that petitioner had violated the decree by putting remains of wheat crop on fire and by entering into the land in violation of decree. Learned counsel for the decree-holder - respondent further states that once it is proved on record that judgment debtor in violation of the decree entered into the land in dispute, hence, both the Courts below rightly penalized the petitioner. Learned counsel for the decree holder - respondent further states C.R. No. 4817 of 2009 4 that even though now decree holder is in peaceful possession, however, one interruption in the possession in violation of the decree is sufficient to penalize the violator judgment debtor.
The sole question involved before this Court is as to whether provision of Order 21 Rule 32 read with Section 51 C.P.C. are penal in nature or they are meant only for enforcement/execution of judgment and decree.
Undisputedly, decree holder is in possession and enjoying the property in dispute. Undisputedly, judgment debtor - petitioner is not in possession of the property in dispute. According to decree holder, there is only one incident when judgment debtors including the petitioner put remains of the wheat crop on fire and left water in the field. No other incident is being quoted by the decree holder.
Section 51 and Order 21 Rule 32 C.P.C. are being reproduced herein to understand properly the scope of the provision:-
"51. Power 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- C.R. No. 4817 of 2009 5
(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 exceeding the period specified in Section 58, where arrest and detention is permissible under that Section;
(d) by appointing receiver; or
(e) in such other manner as the nature of the
relief granted may require:
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-
debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree, -
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part C.R. No. 4817 of 2009 6 of his property, or committed any other act of bad faith in relation to his property, or
(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.
Explanation - In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree."
"Order 21 Rule 32
32. Decree for specific performance for restitution of conjugal rights, or for an injunction - (1) 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 willfully failed to obey it, the decree may be C.R. No. 4817 of 2009 7 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 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 C.R. No. 4817 of 2009 8 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.
Explanation - For the removal of doubts, it is hereby declared that the expression "the act required to be done" covers prohibitory as well as mandatory injunctions."
From the opening language of Section 51, it is clear that it is a procedure to execute the decree and it provides that execution of decree can be made either by delivery of any property specifically decreed; or by attachment and sale; or by sale without attachment of any C.R. No. 4817 of 2009 9 property; or by arrest and detention in prison; or by appointing a receiver; or in such other manner as the nature of the relief granted may require. In my opinion, Section 51 C.P.C. is not a penal provision and it nowhere provides that in the event of violation of decree, violator shall be penalized for such and such term. In the same way, language of Order 21 Rule 32 C.P.C. suggest that decree may be enforced for an injunction by his detention in civil prison, or by attachment of the property, or by both. It nowhere suggest that if decree has already been performed but once violated, violator shall be punished/penalized for imprisonment.
I find support from the judgment of the learned Single Judge of this Court in the case of Smt. Dalip Kaur and others vs. Harbans Singh, reported in AIR 1989 Punjab and Haryana, 16. Learned Single Judge of this Court in paragraph No.3 thereof has held as under:-
"3. So far as the judgment-debtor is concerned, he can be ordered to be detained in civil prison or his property attached, but that too can be done only for the enforcement of the decree. The land respecting which a decree for permanent injunction restraining petitioner No.1 from alienating it was passed, has since been sold. It C.R. No. 4817 of 2009 10 is, therefore, not possible to enforce the decree either by attachment of the property of the judgment-debtor or by detaining him in civil prison. The proceedings under R. 32 are not meant to punish the judgment - debtor for disobedience of the decree. If the judgment-debtor renders himself incapable of performing the decree, he may be liable to be proceeded against under the Contempt of Courts Act, but no action under R.32 can be taken by way of punishment to the judgment-debtor."
Coming to the present case, both the Courts below committed jurisdictional error while sending the judgment debtor - petitioner in jail for a term of six months. It seems that both the Courts below were of the view that Section 51 and Order 21 Rule 32 C.P.C. provides conviction/penalty for violation of the decree. As held above, Section 51 and Order 21 Rule 32 C.P.C. are the provisions to enforce the decree and not to penalise the violator. Now question comes as to whether a violator can never be penalized? The answer is `yes', he can be penalized for violation or disobedience of the decree under the provisions of Contempt of Courts Act, but not under the provisions of Section 51 or Order 21 Rule 32 C.P.C. C.R. No. 4817 of 2009 11
In view of the discussion above, the impugned judgments do not stand in the scrutiny of law and are liable to be quashed.
Present petition is allowed. The impugned judgments are quashed.
August 30, 2010 ( Alok Singh ) vkd Judge