Gujarat High Court
Gohel Parbhatbhai Nathabhai vs Pandya Arwindkumar Ambalal on 18 July, 1986
Equivalent citations: AIR1987GUJ160, (1987)1GLR307, AIR 1987 GUJARAT 160
ORDER
1. The present revision application is filed by the original judgment-debtor in Dark hast No. 45 of 1975 pending in the Court of the learned Civil Judge (JD) Borsad, against the order passed by the learned Joint Dist. Judge, Kheda at Nadiad on 21-2-1981 in Regular Civil Appeal No. 201/80. The said appeal was filed against the order passed by the learned Civil Judge (JD) Borsad on 27-10-1975 in Exh. 1 in Regular Dark hast No. 45/75. By the said order the learned Civil Judge ordered that the judgment debtor be detained in civil prison till he undertakes not to enter the suit land. The learned Civil Judge also ordered that warrant for the arrest of the Judgment Debtor be issued after the judgment-creditor deposits in the court the amount of subsistence allowance for a period of one month.
2. The short question that is raised in this revision application is whether in execution of a decree for permanent injunction the Court has power to detain the judgment-debtor in civil prison for more than six months.
3. The short facts leading to the present revision application can be stated as under :
4. The deceased father of the respondent named Pandya Ambalal Narshibhai of village Asodar had filed a suit against the present petitioner, being the Civil Suit No. 174/67 in the Court of Civil Judge (JD) at Borsad, for obtaining permanent injunction restraining the petitioner from obstructing him his use, occupation and enjoyment of the suit land. In the said suit decree was passed on 14-11-1970 by the learned Civil Judge in favour of the deceased father of the respondent and against the petitioner. After the death of the father of the respondent, the respondent has filed execution petition in the court of the learned Civil Judge (JD) Borsad, being the execution petition No. 45/75. The said Execution petition was filed by the respondent against the appellant-petitioner as the petitioner has committed breach of the injunction which was granted against him by the learned Civil Judge (JD) Borsad in the suit filed by the deceased father of the respondent. In the, said execution proceedings the above mentioned order was passed by the learned Civil Judge (JD) Borsad on 27-10-1975.
5. It may be stated that after the order was passed by the learned Civil Judge (JD) Borsad the present petitioner was sent to Jail for a period commencing from 19th September, 1978 to 7th October, 1978. It appears from the facts stated by the learned Advocates Shri S. D. Patel appearing for the petitioner that against the said order dated 27-10-1975 an appeal being Regular Civil Appeal No. 127/78 was filed before the District Court, Kheda at Nadiad and that came to be dismissed on the point of limitation only by the order dated 27-8-1979 and against the said order a revision application being Civil Revision Application No. 327/80 was filed in this Court which was also summarily dismissed.
6. It is also pointed out that after the revision application filed in this Court came to be dismissed on 9-3-1980 an amount of Rs. 180/- was deposited on 21-4-1980 and the petitioner-judgment-debtor was again taken into custody and committed to civil prison and thereafter the respondent having deposited the mount of Rs. 180/- every month the petitioner-judgment-debtor was ordered to be kept in civil prison from month to month.
7. Hence, the petitioner preferred the Regular Civil Appeal No. 201 of 1980 before the District Court at Nadiad which came to be dismissed by the order dated 21-2-1981. Hence, the present revision application has been filed by the petitioner-judgment-debtor. After the petitioner's detention for six months in civil prison in execution of the decree, the question arose as to whether the subsistence allowance can be accepted. The District Court asked that the subsistence allowance cannot be accepted after the expiry of six months. It appears that the learned Civil Judge (JD) also wrote a letter to the District Court on 16-10-1980 and in the said letter the learned Civil Judge (JD) pointed out the order passed in Dark hast No. 85 to the effect that till further order is passed by the Court the petitioner i.e. the judgment-debtor is not to be released from jail.
8. Mr.S. D. Patel, the learned Advocate appearing for the petitioner submitted that in view of the provisions of S. 97 of the Amending Act of 1976 old provisions of O.2 1, R.32 would apply and hence S. 58 of Civil P.C. as it stood before the Amending Act of 1976 would be applicable. He, therefore, submits that no judgment-debtor can be kept in civil prison for more than six months and, therefore, the order of keeping the petitioner in civil prison as he has in fact completed the period of six months' civil imprisonment, should be set aside. In the alternative he submits that assuming that old provisions of O.21, R.32, C.P.C. may not be made applicable and the amended provisions of S. 58 of the C.P.C. are made applicable, then in view of Rule 2A of O. 39 of the C.P.C., the petitioner-judgment-debtor cannot be detained for more than three months in the civil prison for the breach and/or disobedience of the injunction order of the court.
9. Mr. A. J. Patel, the learned Advocates appearing for the opponent submits that the order passed by the executing court as well as the lower appellate Court to keep the petitioner in custody until he gives undertaking not to commit breach of injunction, are correct inasmuch as no period of detention is fixed in cases where decree of permanent injunction is to be passed under O. 21, R. 32 of the C.P.C. He further submits that the O.31, O.32 as well as S. 58 of amended provisions of C.P.C. are procedural provisions and, therefore, the amended provisions would be applicable even to the pending proceedings and in view of the specified language of S. 58 of the C.P.C. the period of six months or six weeks is applicable only to money decree and not to other decrees, including decree for permanent injunction. He further submits that S. 51 of the C.P.C. lays down different modes in which the decree of the Civil Court can be executed and one of them is of arrest and detention of the judgment-debtor in civil prison, and the detailed procedure is thereafter laid down in O.21, R.,32 of the C.P.C. for the purpose of enforcing the decree for permanent injunction to which amended S. 58 of C.P.C. would not be applicable which is only meant for money decrees.
10. Both the learned Advocates in support of their contentions have cited certain authorities which would be referred to at the relevant time.
11. With a view to properly appreciate the contentions raised by the learned Advocates, it is necessary to quote the relevant portions of the Sections as well as orders of the unamended and amended Civil Procedure Code. In the unamended C.P.C. after S. 50 there is a caption "Procedure in Execution". Relevant extract of See. 51 (unamended) reads as under :-
"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;
(d) by appointing a receiver, or
(e) in such other manner as the nature of the relief granted may require;
Unamended Section 58 reads as under :
"58. Detention and release.- (1) Every 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 fifty rupees, for a period of six months, and
(b) in any other case for a period of six weeks. Provided that he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be, -
(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.
(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 rearrested under the decree in execution of which he was detained in the civil prison."
Section 59 of unamended C.P.C. refers to release on the ground of illness and it provides that a judgment-debtor released under this Section may be re-arrested but the period of his detention in the civil prison shall not in the, aggregate exceed that prescribed by S. 58.
12. Order XXI prescribes the mode, and procedure of execution and Rule 32 thereof prescribes, inter alia, the mode of execution of decree for injunction where a party against whom decree for an injunction has been passed has had an opportunity of obeying the decree and. has wilfully failed to obey the decree may be enforced in case of a decree for injunction by his detention in civil prison or attachment of his property or by both.
13. Amended Sections 51 and 58 of the C.P.C. read as under:
"51. 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 exceeding the period specified in S. 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 :
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 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 sonic 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 purpose 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."
"58. (1) Every 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.
(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed five hundred rupees.
(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 rearrested under the decree in execution of which he was detained in the civil prison."
Section 59 of the C.P.C. is the same as unamended. Order XXI, Rule .32 of the amended C.P.C. is also the same as the old one, except in sub-rule (3) instead of one year it is made six months after the amendment.
14. Mere perusal of S. 58 of the C.P.C. as it was prior to the amendment i.e. before the Amendment Act of 1976, it is clear that S. 58 prescribes the period for detaining a person in civil prison in respect of any decree including the money decree. Clause (a) of sub-section (1) of S. 58 provides for the money decree exceeding fifty rupees a period of six months, while in any other case the period which is prescribed is for six weeks. It is pertinent to note that in Clause (b) of sub-s. (1) of S. 58 the words used are "in any other case" which may include money decree of less than Rs. 50/- and also other decrees like, decree for specific performance, decree for injunction, etc. Perusal of Cls. (i) and (ii) of the proviso to sub-s. (1) of S. 58 clearly indicates that Clause (b) thereof is not restricted to the money decree of less than Rs. 50/- because these clauses may be applicable to the decrees for specific performance as well as those for the injunctions besides money decrees. Clause (ii) speaks about the release of the judgment-debtor so detained before the expiration of six months or six weeks on the decree against him being otherwise fully satisfied. When the decree for specific performance is executed by executing a conveyance and delivery of possession of the suit property through the Court otherwise than the decree is satisfied and, therefore, person detained can be released before the expiry of the period of six weeks. Similarly, for the reasons best known to the decree holder he may request the judgment-debtor of any other decree to be released earlier before the expiry of the prescribed period. It is also provided in sub-s. (3) of S. 59 of the C.P.C. that where a judgment-debtor has been committed to the civil prison, he may be released there from by the State Government on the ground of existence of any infectious or contagious disease or by the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness. This sub-s. (3) empowers the Court as mentioned therein, to release the judgment-debtor after his detention in the civil prison on the ground of illness. It is, therefore, clear that that provision is also not confined to only money decrees. Reading the section as a whole along with other relevant sections of the C.P.C. it is clear that S. 58 provides the maximum period of detention in the civil prison for all types of decrees.
15. Mr. S. D. Patel, the learned Advocate for the petitioner submits that in this case the learned Judge has passed the order in the execution proceedings in the year 1975 when there was no amendment and as per the said order the judgment-debtor i.e. the present petitioner was detained in the civil prison, When that order was passed as there was no amendment, he submits that in view of the provisions of Clause (q) of S. 97 of the Civil Procedure Code Amendment Act, 1976 the old provisions would apply. The relevant portion of S. 97 of the Code of Civil Procedure (Amendment) Act, 1976, reads as under :
"97. Repeal and savings.
(1) ...........
(2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-s. (1) has taken effect, and without prejudice to the generality of the provisions of S. 6 of the General Clauses Act, 1897 : -
(a) ...............
(q) the provisions of Rr. 31, 32, 48-A, 57 to 59, 90 and 97 to 103 of O. XXI of the First Schedule as amended or, as the case may be, substituted or inserted by S. 72 of this Act shall not apply to or affect : -
(i) any attachment subsisting immediately before the commencement of the said S. 72, or
(ii) any suit instituted before such commencement under R. 63 aforesaid to establish right to attached property or under R. 103 aforesaid to establish possession, or
(iii) any proceeding to set aside the sale of any immovable property, and every such attachment, suit or proceeding shall be continued as if the said S. 72 had not,, come into force."
16. On perusal of this Section it is clear that the case of the present petitioner does not come under any of the said three categories as described in Clause (q) of S. 97 of the Amendment Act of 1976 because when the order was passed by the executing Court for arrest and detention of the judgment-debtor in civil prison in execution of the decree, it is not the case for attachment subsisting immediately before the commencement of this Act. Similarly, it is not suit under R. 63 or R. 103 of O. XXI or it is not a proceeding to set aside the sale of immovable property. In that view of the matter, when the Amendment Act of 1976 came into force, the amended provisions would apply from the date on which it came into force. However, it would not make any difference so far as the applicability of O. XXI, R. 32 of the C.P.C. is concerned, because there is no such material amendment except as stated above, in O. XXI, R. 32, Clause (3) and. that amendment is not relevant for the present case.
17. On the basis of this submission of applying the provisions of unamended O. XXI, R. 32 to the present case, Mr. S. D. Patel further submitted that S. 58 of the C.P.C. as it was unamended would apply to the present proceedings. I would like to make it clear that on perusal of S. 97 of the Amendment Act of 1976, there is no provision saving the judgment-debtor from the effect of the Amendment Act and S. 58 of the C.P.C. after amendment is placed in the cluster of Ss. 55 to 58 under the caption of "arrest and detention", which is further provided in the caption of "procedure in execution" from S. 51 onwards. Section 51 prescribes procedure of execution providing different mode in which the decree can be executed and one of the modes is by arrest and detention of the judgment-debtor in civil prison. Section 58 after amendment provides under what type of decrees the judgment-debtor would be arrested and detained in civil prison for the prescribed period.
18. In that view of the matter the argument of Mr. S.D. Patel, the learned Advocate appearing for the petitioner that the unamended provisions of S. 58 of the C.P.C. would apply to the present case, has no force, particularly because it is a part of the procedural law and that procedure would apply at the time when it comes into force.
19. On this point Mr. A. J. Patel, the learned Advocate appearing for the respondent has pointed out the judgment in the case of Raja Reddy v. Anasuyamma, AIR 1977 Andh Pra 342 wherein its is observed that the amendment to the Civil P.C. is normally to be considered retrospective. In the said case it was argued that though most of the provisions of the C.P.C. are the provisions relating to procedure, the above principle is not applicable to the case. The Division Bench of the Andhra Pradesh High Court did not agree and it observed that an application for arrest and detention in civil prison is only one of the modes of execution of decree. It is true that the legislature has provided that the total period of detention in civil prison cannot exceed a particular period and, therefore, held that amendment of the C.P.C. even in regard to the period of detention should be considered as in amendment to the provision relating to procedure and would have retrospective effect and will apply to pending sections. I entirely agree with the view of the Division Bench of the Andhra Pradesh High Court. In that view of the matter, the argument of Mr. S. D. Patel that the amended provisions of the C.P.C. should not be made applicable to the present case cannot be accepted particularly when the question of acceptance of subsistence allowance has arisen in October, 1980 when the judgment-debtor has completed six months' detention in civil prison.
20. Mr. S. D. Patel has submitted in the alternative that when the new procedure is to be made applicable, it is provided in O. 39, R. 2-A that when there is any breach or disobedience of any injunction such person can be detained in civil prison for a period not exceeding three months. It may be stated that R. 2-A is a part of O. 39. Order 39 applies to temporary injunctions and interlocutory orders. Injunctions can be issued either under 0. 39, R. 1 or R. 2 and, therefore, the words "any injunction" are used in R. 2-A. However, if these two words "Any injunction" are read divorced from the context it may appear that it may include not only injunction granted under O. XXXIX, Rr. 1 and 2 but it may also include the decree for permanent injunction. It is, therefore, necessary to quote relevant portion of O. XXXIX, R. 2-A which reads as under :
"2-A. (1) In the case of disobedience of any injunction granted or other order made under R. I or R. 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 .................."
Normally, once when the temporary injunctions are granted they would be continued till the disposal of the suits and, therefore, such temporary injunctions have the span of life till the suits are disposed of and, therefore, the period of detention is prescribed at three months. The express language of R. 2-A of O. XXXIX if read in proper context it would make it c1ear that it is only in respect of temporary injunction which is granted either R. 1 or R. 2, and if breach thereof is committed then the consequence would follow as mentioned in R. 2-A. Therefore, the argument that it would also include permanent injunction granted at the time of passing the decree is totally misconceived. Therefore, that argument cannot be accepted.
21. When that is so, the next question would be whether the amended provisions of S. 58 prescribes the period for detention or not, in the decrees other than money decree. On perusal of S. 58 after amendment and particularly Cls. (a) and (b) of sub-s. (1) it is clear that both the said clauses speak only about the decree for payment of money. One clause prescribes that limit exceeding Rs. 1000/- while the other prescribes the limit exceeding Rs. 500/-. It is therefore, clear that the limitations provided in Cls. (a) and (b) apply to only money decrees and not to other decrees. There is no other section which provides the period of limitation.
22. On this point Mr. A. J. Patel, the learned Advocate appearing for the respondent has pointed out the judgment in the case of Suba Singh v. Bagicha Singh, AIR 1980 Punj and Har 62. In the said case the tacts were similar to the present case as there also it was a decree for permanent injunction which was to be executed by arrest and detention of the judgment-debtor in civil prison. After repelling the argument that no order of detention could be passed under O. 21, R. 32(l) of the Code, it is observed in the said case that "wherever the detention .is provided under the Code by way of penalty as a consequence of disobedience of any order, maximum period for detention has been provided such as under O. 39, R. 2(A). Similarly, where detention is sought as provided under O. 21, R. 37 of the Code of the execution of the money decree, maximum period has been provided under S. 58 and the reason is obvious. Even if a person is detained in civil prison, he may not be able to satisfy the money decree against him and for that reason he cannot be detained in civil prison for an indefinite period. Therefore, the legislature in its wisdom has provided the maximum period of detention for that purpose as well. Order 21, Rule 32(l) is for the enforcement of the decree for an injunction, etc. and therefore, the question of providing any maximum period, in the nature of things does not arise. The person detained will be released as soon as he satisfies the decree against him, that is, the wrong done by him is undone, which is within his powers to do. He cannot be allowed to plead his own fault in his defence." Thus, the said judgment also makes it clear that no period for detention is prescribed when the judgment-debtor is to be arrested and detained in civil prison in enforcement of the decree for permanent injunction under O. 21, R. 32 of the C.P.C. I entirely agree with the aforesaid reasoning in the said decision.
23. Before parting with this judgment, it may be stated that Shri S. D. Patel, the learned Advocate appearing for the petitioner has also relied on the judgment in the case of Ghanshamdas Goorsamull v. Joharimull Kedarinath, ILR 7 Bom 431. In the said case after considering the relevant sections of the Civil Procedure Code Act XIV of 1882 and particularly Ss. 481, 342 and 336 their Lordships were of the opinion that in execution of the decree when the judgment-debtor is to be sent to jail, the maximum period would for six months and if he was not actually detained for six months, he can be re-arrested till he completes the entire period of six months' detention. However, subsequently in the Act of 1908 the position is made clear that when the judgment-debtor is released from detention under this S. 58, he shall not be liable to be re-arrested under the decree in execution of which he was detained in civil prison. In that view of the matter, the said judgment is not useful to the petitioner's case in view of the amendment made in the provisions of S. 58 of the C.P.C. by virtue of Amendment Act, 1976.
24. Mr. S. D. Patel has lastly referred to the AIR Commentaries on the Civil Procedure Code on S. 58 and he pointed out to me that there is one judgment of the Rajasthan High Court on this point, but he could not get the entire judgment and, therefore, he has pointed out only the note which reads as under :
"1965 Raj LW 466 (467) Breach of decree of permanent injunction under O. 21, R. 32(l) detention under S. 58(1)(b) for a period beyond six weeks is not legal."
In view of what I have stated above, his submission on this point is correct and the judgment reported in ILR 7 Bom 431 also speaks the same thing. I have also construed S. 58 of the C.P.C. as it stood before amendment and I have held that it speaks about the period of detention in respect of all the decrees including money decrees and, therefore, there is no question of doubting the ratio of the abovementioned Rajasthan Judgment, but that would not be applicable in view of the fact that the provisions of the amended C.P.C. would apply to the present case, and, therefore, there is no period for detention fixed for enforcing the decrees of permanent injunction.
25. In above view of the matter, the revision application deserves to be dismissed and is hereby dismissed. Rule is accordingly discharged with no order as to costs. It is clarified that if at all the petitioner wants to challenge in future his order of detention in any other proceeding on any other ground excepting the points which are decided in this revision application, he would be at liberty to do so.
26. Revision dismissed.