Karnataka High Court
Chief Secretary vs Gopal Ramachandra Nadgouda on 4 August, 1989
Equivalent citations: ILR1989KAR3371, 1989(2)KARLJ406
ORDER XXI RULE 32 - Object - Conditions precedent to sale - Unless conditions fulfilled, grant of compensation out of sale proceeds impermissible - Not permissible to convert decree for injunction into decree for compensatory costs - Inherent power to give effect to decree Ex Debito Justitiae exercisable; fresh suit not necessary. Object of the Rule is to compel the Judgment-debtor to perform the obligations arising from decree for injunction. Unless the conditions are fulfilled, it is not permissible for a Court to proceed to grant compensation out of sale proceeds.. .It is not permissible, for the Executing Court to convert a decree for injunction into a decree for compensatory costs. The first thing before giving effect to Order XXI Rule 32 CPC is to find out whether a decree for injunction is passed against a party who though had an opportunity to obey it has wilfully failed to do so and the decree can be enforced by attachment of property or detention of the Judgment Debtors in the civil prison or by attachment of his property, or both. The property attached can be brought to sale after a lapse of six months if the disobedience still exists and out of the sale proceeds compensation may be paid to the Decree-holder. On Facts: The finding that the petitioners have violated the injunction shall stand affirmed and the matter is remitted to the trial Court to hold an enquiry as to what damages have been suffered by the decree-holders on account of non-compliance with the injunction and to assess the same and award it not under the provisions of Order XXI Rule 32 CPC but under its inherent power to give effect to the decree Ex Debito Justitiae. It is not necessary in such a case that another suit should be brought. ORDER Rajendra Babu, J.
1. This is Judgment-debtors revision petition which arises out of an order made in Execution Petition No. 89 of 1965 on the file of the II Additional Munsiff, Belgaum. Decree-holders in the execution petition had filed a suit O.S.No. 444 of 1955 inter alia for declaration: (a) that the order passed on 24-4-1951 by the Collector of Belgaum is binding upon the Judgment-debtors; (b) the order dated 24-4-1951 and Resolution No. 1031/49 dated 20-5-1950 had the effect of cancelling the order of 4-1-1945 and (c) for an injunction restraining the Judgment-debtors from introducing and promulgating the Record of Rights as the same is based on the order dated 4-1-1945 which is cancelled.
2. These two declarations and relief of injunction sought for by the Decree-Holders were granted in the said suit. Decree-holders filed an execution petition to enforce the decree including the relief of injunction referred to above as the Judgment-debtors had not complied with the decree, but have acted in violation of the terms thereof. Judgment-debtors contended that there is no promulgation of the Record of Rights and unless the decree-holders had established that there has been introduction and promulgation of Record of Rights contrary to the terms of the decree they would not be entitled to any of the reliefs. It is also contended that the Record of Rights introduced and promulgated at Ambewadi village is not in contravention of the decree passed in the said suit. However, in the course of the proceedings when an enquiry was held into the matter, written submissions were filed, wherein it was stated as follows:
"... .Some of the instances pointed out by the Decree Holders by producing the Record of Rights Extracts and the communications received from the office of the Assistant Commissioner only show that even to this date the Record of Rights extracts are supplied containing entries with reference to the order of the Kurundwad Senior Estate dated 4-1-1945, which is declared to be null and void, by the Court. I have to state that these extracts are supplied, not on the basis of any new record prepared but on the basis of the existing records and, therefore, in my view that does amount to violation of the decree."
On the basis of these submissions and the evidence adduced, the executing Court came to the conclusion that the decree for injunction had not been complied with although they had ample opportunity to obey the decree; and they had wilfully disobeyed the term of the decree. These conclusions were drawn upon the following facts:
(i) That the Judgment Debtors were aware of the decree of mandatory injunction restraining them from introducing and promulgating the Record of Rights in respect of the suit lands in the Village Ambewadi based on the order dated 4-1-1945 which was held to be null and void;
(ii) By a notification dated 19-5-1950 decree-holders were declared to be holders to the extent and value of the land as per the Gazette Notification dated 19-9-1950;
(iii) About 60 documents which are the extracts of the R.Rs. of the suit land where the names of tenants were mentioned below the names of the decree-holders in the Kabjedar column;
(iv) On behalf of the Judgment-debtors and at their instance it was announced by beat of drums that the tenants not to pay the rents to decree-holders;
(v) Judgment-debtors collecting rents from the tenants and there were entries to that effect in the Government Records;
(vi) Again when part of the suit-lands were acquired by the Government for the formation of road, paid compensation to the tenants;
(vii) Even the evidence of Judgment-debtors through D.W.1 has strengthened the statement made by the decree-holders that he used to collect rent from the tenants and the suit land in Ambewadi village during his tenure.
Therefore the trial Court drew an inference that the Record of Rights were introduced and promulgated by the Judgment-debtors in violation of the terms of the decree of injunction.
3. These findings were attacked by the Judgment-debtors by contending that their acts do not amount to disobedience of the injunction granted by the Court, inasmuch as, the same has been done pursuant to the statutory obligation arising under the Karnataka Land Revenue Act and all that has been done is only to continue to show the existing state of affairs in the Record of Rights and that will not amount to introducing the names of persons in the Record of Rights after the decree of injunction had been granted and there is no relief sought for the deletion of the names of the persons and to decide afresh as to in whose names Record of Rights have to be issued without reference to the order dated 4-1-1945. Though, in this form, the arguments were not addressed before the executing Court, it is before this Court, for the first time, such arguments have been addressed. This Court, therefore, asked the learned Government Advocate to place before the Court material to substantiate the contentions raised on their behalf that the Record of Rights that have been made now are not pursuant to the order dated 4-1-1945 but pursuant to the proceedings held under the Karnataka Land Revenue Act. Even after several years of pendency of this matter, learned Government Advocate had not been able to produce any material before this Court to substantiate that stand. Therefore the defence raised on behalf of the petitioners that they have acted in pursuance of the provisions of the Karnataka Land Revenue Act and any act done under the statutory obligation though a good defence has got to be rejected as the same is not substantiated.
In view of the conclusions reached by the Executing Court with which I concur it is clear that though Judgment-debtors were aware of the mandatory injunction they had not given effect to the same but had acted in utter disregard of the same thus attracting the wrath of Order XXI Rule 32 C.P.C.
The Executing Court, however, after giving a finding to this effect has merely proceeded to assess the damages sustained by the Decree-holders on account of non-compliance with the decree; but without following the procedure under Order XXI Rule 32 C.P.C.
4. In cases coming under Order XXI Rule 32 C.P.C. compensation can be paid out of the proceeds of sale and the conditions precedent to sale under the rule are:
(i) Existence of a valid attachment;
(ii) Application by decree-holder for sale; and
(iii) Lapse of six months between the attachment and sale.
None of these conditions exist in the present case. Object of the rule is to compel the Judgment-debtor to perform the obligations arising from decree for injunction. Unless these conditions are fulfilled, it is not permissible for a Court to proceed to grant compensation out of sale proceeds held after fulfilling the conditions referred to above. It is not permissible for the Executing Court to convert a decree for injunction into a decree for compensatory damages The first thing before giving effect to Order XXI Rule 32 CPC is to find out whether a decree for injunction is passed against a party who though had an opportunity to obey it has wilfully failed to do so and the decree can be enforced by attachment of property or detention of the Judgment debtors in the civil prison or by attachment of his property, or both. The property attached can be brought to sale after a lapse of six months if the disobedience still exists and out of the sale proceeds compensation may be paid to the decree-holder. In the present case, as stated earlier, the conditions requisite for payment of compensation not having been fulfilled, the order made by the Executing-Court cannot be sustained under Order XXI Rule 32 CPC.
5. Now the question that arises for consideration is whether the Executing Court could give effect to the decree Ex Debito Justitiae. In a decree made declaring the termination of services of an employee being null and void, the Supreme Court in KRISHAN MURARI LAL SEHGAL v. STATE OF PUNJAB CMP No. 10572 of 1978 in CAs Nos. 1298 & 1299 of 1969 took the view that not only there was an obligation to reinstate an employee but also to pay back wages in such an event. This is how the Supreme Court dealt with the matter:
"Heard, Counsel for the parties. This application is disposed of on a short ground. It has become necessary to clarify the order made by this Court allowing the appeals of the petitioner. According to the decision of this Court, the petitioner was given a declaration that he would be deemed to continue in service with effect from the date of the suit. As a logical consequence of this declaration, it is manifest that the petitioner would be entitled to back-salary right from 1st June 1962 till 9th February 1974. The only way in which the Judgment of this Court can be implemented is to pay the aforesaid amount of salary to the petitioner. With these observations this application is disposed of. The amount of the salary must be paid within two months from today."
The Supreme Court ordered the compliance of a purely declaratory decree in a case where an employee was declared that he would be deemed to have continued in service from the date of the suit, by ordering that not only he was entitled to be reinstated but also that he should be paid back salary for the period of about 12 years.
Applying the principle to the present case, when an order is declared to be null and void all consequences that flow from it must be given effect to and in this case there is a specific injunction not to give effect to it or prepare any revenue records on the basis of that order which has been declared to be null and void. When that is so, there is a duty cast upon the Judgment-debtors to perform these obligations. To hold otherwise will reduce the decrees passed by Courts to mockery and result in travesty of justice. In this case however, no sufficient foundation has been laid as to the extent of damages claimable on account of non-compliance with the decree either in the form of pleadings or evidence.
6. Therefore, the order under revision is set aside only to the extent of directing payment of compensation; but the finding that the petitioners have violated the injunction shall stand affirmed and the matter is remitted to the trial Court to hold an enquiry as to what damages have been suffered by the decree-holders on account of non-compliance with the injunction and to assess the same and award it not under the provisions of Order XXI Rule 32 CPC but under its inherent power in giving effect to the decree Ex Debito Justitiae. It is not necessary in such a case that another suit should be brought as contended by the learned Counsel for the petitioners. In a situation of similar nature, the Punjab & Haryana High Court in BAGICHA SINGH v. SUBA SINGH held that in a suit for injunction the executing Court or the High Court has jurisdiction to order possession of land in dispute be restored to the decree-holder.
In the result, the order under revision is set aside to the extent indicated above and the matter is remitted to the trial Court for disposal of the same in accordance with law and in the light of the observations made in the course of this order.
ORDER ON BEING SPOKEN TO In this petition I made an order on 4-3-1989 remanding the matter to the trial Court for disposal with certain directions. Learned Counsel on both sides agree that since this matter has been pending for a long time, it is appropriate to direct the trial Court to dispose of the matter expeditiously. In the circumstances, I direct the trial Court to dispose of Execution Petition No. 89 of 1985 within a period of three months from the date of receipt of the order.