1. The challenge in this petition under Articles 226 and 227 of the Constitution of India is the order dated 27/28.7.2011 passed below Exh./Execution Application NO.16 of 1997 and also the order dated 11.5.2011 prior to that on the ground that the petitioner Nos.1, 2 and 3 debtor committed breach of the decree/injunction order dated 27.1.1992 passed in Regular Civil Suit No. 194 of 1990 by executing the sale deed on 26.3.1997.
2. It is not in dispute that order dated 11.5.2011 came to be passed upon noticing the above facts and the defendants were issued show cause notice to render explanation /to file the reply on before 15.6.2011 but service of the said order could not be effected by the bailiff due to paucity of time and explanation was sought for which came to be granted and finally as per the endorsement of service the above order came to be served upon defendants on 25.7.2011 and for other defendants the said notice was accepted by petitioner No.1. On 27.7.2011 when the petitioners remained present it was urged to the Executing Court to grant time to explain and answer the show cause notice about alleged breach of decree/final order of injunction but impugned order was passed on 28.7.2011, by which, the petitioners are committed to civil prison for six months with penalty of Rs.2,000/- each to be paid and warrant for arrest was issued accordingly.
3. Mr.
Ashin Desai, learned advocate for the petitioners would submit that when the orders as above impugned in this petition are passed without affording adequate opportunity of hearing and the petitioners are not permitted to bring necessary material on record in support of their case for no breach was ever committed by them and earlier parties have settled the dispute by entering into an agreed settlement about the subject suit land and necessary entries were also mutated in revenue records. However it is submitted that even for a day no time was granted and the petitioners being permanent resident and were not likely to escape or run away from the jurisdiction of the Executing Court denial of opportunity to bring forth necessary record amounts illegality which need to be corrected by this Court in exercise of powers under Articles 226 and 227 of the Constitution of India.
4. Upon hearing the parties, on perusal of the orders impugned, it is evident that the order/show cause notice dated 11.5.2011 mandating the petitioners to remain present on 15.6.2011, the above time came to be extended later on which finally served on some of the petitioners only on 25.7.2011 and accordingly a request was made to grant 30 days of time to render explanation. The petitioners were present on 20.7.2011 and submitted an application accordingly which came to be rejected and the final order came to be passed ordering civil imprisonment for a period of six months and imposing penalty of Rs.2,000/- each. The petitioners were rendered remediless inasmuch as the petitioners wanted to present their side of version by bringing necessary material on record including the settlement arrived at between the parties as early as in the year 1993, which came to be accepted by Talati-cum-Mantri of the Village by entering necessary entries in the revenue record.
5. In the above circumstances, I am of the view that orders impugned dated 11.5.2011 and 27/28.7.2011 are passed arbitrarily and in violation of principles of natural justice, as no opportunity was given to the petitioners and, therefore, the impugned orders deserve to be quashed and set aside. Accordingly, the impugned orders are hereby quashed and set aside.
6. The petition is allowed accordingly with a direction to the Executing Court to hear the petitioners on alleged breach of order dated 27.1.1992 after issuing a fresh notice in accordance with law.
[ANANT S. DAVE, J.] //smita// Top