Karnataka High Court
Sri H S Shivaswamy S/O Late ... vs H S Raghavendra on 24 May, 2012
Equivalent citations: AIR 2012 KARNATAKA 157, 2012 (4) AIR KAR R 9, (2013) 3 CIVLJ 230, (2012) 3 KCCR 2169
Author: S.Abdul Nazeer
Bench: S.Abdul Nazeer
R
EN THi HIGH (2O1[JRT GFK..ARNA2A.K.A A.T BANGAI..ORE
DGJFED THIS THE DAY HENlEY 2.012.
EtEEGRE
THE lION 'BLE 1iRJ USTI(OE £ A.BDIJL NAZEER
WRIT PETITION NO, 16998/2010 tGJiiP(
Betsvee n:
s
Sb late Seetharamaiah,
Aged about 56 years
Ccc: AericulturEt.
100 Hulimaue K;o:a
Post: Add.agadde., Sd.u.ged Tal uk.
Chickniaeaiur District. . Petidoucr,
(Es: Sri SAOPrak.asb. Acjv,)
H .5, Raebaseudra,
Sb late H. Seetharamai ad,
2 H,R,Ravi,
S'o I its Fl c digli sLv'Ia
Deleted.
2
4 H.R. Keshavamurthy.
S/n late H.S.Raghavendra,
Aged about 35 years.
All are rio Hulirnane of Kavadi Vil
lage.
Addagadde Post. Sringeri Taluk.
Chikmagalur District.
.... Respondents.
(RI. R2 and R4 served; R3 deleted
vile Court Order dated 8.11.2011)
This Writ Petition is filed under
Articles 226 & 227 of the
Constitution of India, praying to
quash the order dated 12.10.2009
in Execution Case No.12/2005
on the tile of the Civil Judge
(Jr.Dn.). Shringeri. etc.
This Writ Petition coming on for
Preliminary Hearing in 'B'
Group this day. the Court passed
the following:
ORDER
The petitioner had filed a suit in OS.No.10611998 on the file of the Civil Judge (Jr.Dn.) & JMFC. Sringeri. for permanen t injunction restraining the respon dents herein or any person claiming under them from rerno ing earth from the channel or causing damage to the road lea ding to his house from Begane Sringeri main road. The suit was decreed on 21.1.2003.
The petitioner filed Execution Case No.12/2005 Ibr the execution of the 3 said decree. In the said case. the petition er has not only sought for arrest and detention of the judgment debtor in the civil prison but also police protection for fencing A' schedu le property.
2. The respondents have opposed the exe cution petition by filing their objections.
3. H.S.Shiva.swamy. the petitioner/decre e holder got examined himself as P.W I. He was also cro ss-examined on behalf of the respondenlljudgment debtors. Aft er consideration of the materials on record, the court below has dismissed the execution petition by order dated l2.lO.20()9. The petitioner has called in question the validity of the said order in this writ petition.
4. Learned Counsel for the petitioner wou ld contend that the Civil Court had not only restrained the def endants from removing the earth from the channel but also from cau sing damage to the road connecting the house of the petition er and Begane-Sringeri 4 'V road. They have deliberately disobeycd the decree. Therefore, the executing Court ought to have directed arre st and detention of the respondents in the civil prison and also permitted the petitioner to fence the A schedule propeny marked in the sketch enclosed along with the execution petition.
5. It is clear that the court below has pas sed a decree of prohibitory injunction. According to the petitioner. it has been deliberately disobeyed by the respondents . He has sought tbr detention of the respondents in the civil pris on. He has also sought permission to fence 'A' schedule proper ty marked in the sketch enclosed along with the execution petition . Therefore. let us first consider as to whether the petitioner has made out a case for detention of the respondents in the civi l prison for disobedience of the order of hjuncdon.
6. Order 21 Rule 32 of the CPC pro vides for execution of decree for specific perfonnance of a con tract. or for restitution of 5 C0D1ur4 tc'ht, t I cull Iljunq, ft Rrik •J) of Orrjer '1 rcIcw t tar the 1 PWp; I 11th Ca'c' whi,j, ; t' '32 lker for cpecIn fort 1 IP J(j.,) of ropJj, rIgig, or for an jj jw, rn, , 4 fi Where the I%dins whom a dect for thc.a SPffjc pet 1 nw 1 a Contract tr tin rCMitIJbØ ole )nJujal 01 Em 'n IflUnc tkq has ban has had an j opp3flp of ube i, the decice and he 'tuft kv tc the decree "& be tittoxceej in tht i 4%e Ja decree Ibi of cunj ipi flglu 113 Etc cf his prupp w in the Lace ot a for the Spec itic, pcrfo.. a ecuuu- Or "F 3 fl4juntt, b4 1 Li'd0 q,g in the qjt px s '3 3 or1) the dttachim 1 oil 4 - puopm ork both"
7. In tht 1fl%ff as- T .e ar' wrer lCd 'ih &t cit. cr i''' Fu 1 '• P. 1ç • 'A'pffi s lit a PTesam, ilmu t.hLft iP4-j d' Jiieir 1 I C g LQi,cuI .. In HR 'f1' i 1 R , 4g jj I I I 6 4
26. this Court has held that Order 21. Rule 32 I requires that the person seeking execution of the decree for injunction by detention of the person hound 1') the decree iii civil prison must place materials before the executing court as would enable it to conclude that (1) the person bound by the decree was hilly aware of the terms of the decree and its binding nature upon him and (2) that person has had an opportunity of obeying such decree but has wilfully i.e. consciously and deliberately disobeyed such decree so that it can make an order for his detention as sought for. Thus, the onus of placing the aforesaid materials bethre die executing Court is on the decree holder. The executing Court cannot make an order for detention of the judgment debtor under 0.2 1 R.32 U without recording a finding on the basis of the materials to be produced by the person seeking execution of the decree that the judgment debtor though has had an opportunity of obeying the decree has wilfully failed to obey it. Therefore, where the executing Court ordered detention of the judgment debtor in civil prison oii the Finding that he had wilfully disobeyed the decree for injunction merely on the 7 & basis of rival arguments heard by it and inn on the basis of any material placed before it by the parties, (he order of detention would be invalid.
8. Tn ICARIVAPPA I'S. IIALADAPPA - AIR 1989 ICARNATAI(A 163, this Court was considering the meaning of the expression wilful disobedienc&. It has been held as under:
"Wilfulness connotes a 'deliberate action'. conduct moulded by an obstinacy to act consciously disregarding an injunction against such a conduct. For example, in the case of a right of way, the judgment debtor may plead that on a particular day. he had to put up a fence across it to avert a major disaster and not with a view to obstruct the decree holder. He may agree to the removal of the obstruction or agree to provide a convenient alternate pathway to the decree holder. when called upon to do so under 0.21. R. 32(11 CPC; in such a situation, disobedience cannot be ternied as wilful. But the initial onus to place the ((3 8 relevant material for an action against the judgment debtor vill be always on the decree holder ."
9. It is thus clear that in order to detain the judgment debtor in the civil prison for the disobedience of the decree of injunction. the decree holder has to satisfy that the judgment debtor has wilfully failed to obey the decree despite hav ing had an opportunity of obeying it. 'Wilful' means deliberate or intentional and not accidental or by inadvertence. 'Wilfulnes s' connotes a deliberate action, conduct. moulded by obstina cy to act consciously disregarding an injunction against such an order. if the disobedience is the result of some compell ing circumstances under which it was not possible to comply wit h the order, it is not wilful disobedience. The Court under this pro vision is empowered to order to take away the liberty of an individual and order for detention of the person who violates the order in the civil prison. The said power of the Court is penal in nature. The Court cannot pass an order of detention on suspicion or as a matter of course.
4 9There should be a clear proof that the order of disobedience was clear. unambiguous and with full kno wledge of the contents of the order. it was wilfully disobeyed. Therefo re, the initial onus to place the relevant material for an action aga inst the judgment debtor will always be on the decree holder.
10. The petitioner has not produced any materials to show that the respondents are fully aware of the terms of the decree and that they have consciously and deli berately disobeyed the said decree. After considering the materia ls on record, the court below has opined that no matedal have been produced by the decree holder for grant of the relief claimed by him. I do not find any error in the order.
11. That brings mc to the next question as to whether the petitioner is justified in seeking permission of the Executing Court to fence 'A' schedule property marked in the sketch enclosed along with the Execution Petition. A furt her question as to whether Oier '1 10 21 Rule 32(5, can be made applicable for execution of prohibitory injunction also requires consideration bec ause the decree in question is prohibitory in nature. Rule 32(5) of Order 21 provides for restitution in case an order of injunction has not been obeyed, in lieu of or in addition to the remedy available under Order 21 Rule 32(I). Under this provision, the Coun can direct die act required to be done by the judgment debtor may be done by the decree holder or some other person appointed by the Court at the cost of the judgment debtor. The word t inju nction was not controlled by its nature being mandatory or prohibitory. A question arose as to whether die words 'the act requires to be done' contained in this provision covers the situation where a prohib itory injunction has been incorporated in the decree. Some of the High Courts have held that Order 21 Rule 325) is applicable for enthreernent of mandatory as well as prohibitory injunctions.
Some other High Courts have taken a view that the said provisi on is not applicable for enforcement of the terms of a prohibitory injunction. This Court in KARIYAPPAs case (supra has taken a view that the said 4, 11 provision cannot he enforced to implement a prohibitory injunction. The controversy has been resolved by insertion of an Explanation to Order 21 Rule 32(5) by CPC amendment Act 2002 (22 of 2002) with effect from 6.6.2002. which is as under:
"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."
After the insertion of the above Explanation. the Executing Court is authorised to direct the enforcement of mandatory as also prohibitory itjunctions.
12. However, even after the amendment, the said Section has no application to this ease. The court below while decreeing the suit has restrained the defendants from removing the earth from the channel or causing damage to the road leading to the house of the petitioner from Begane-Shringeri Road. When the Court has not 12 granted a decree for fencing 'A' schedule property. question of its enforcement by the decree holder or disobedience of the decree by the judgment debtor does not arise. Disobedience of a decree of injunction is necessary for seeking restitution under Order 21 Rule 32(5). It is well established that an Executing court cannot go outside or beyond the decree. The duty of the Executing Court is to give effect to the terms of the decree. Though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation (See V.RAMAS WAMJ AIYEVGAR & OTHERS VS. T.N.V.KAIL4SA THE VAR - AIR 1951 Sc 189).
13. There is no merit in this writ petition. It is according'y dismissed. No costs.
Sd! JUDGE 8MM!-