IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.34900/2014(GM-CPC) BETWEEN:
SRI SHANTHAPPA, AGED ABOUT 63 YEARS, S/O KERIYAPPA, R/AT KUBTUR VILLAGE, SORABA TALUK, SHIMOGA DISTRICT-571213.
... PETITIONER (BY SRI H. DAYANANDA SARASWATHI, ADVOCATE) AND:
SRI K. S. NAGAPPA, S/O KERIYAPPA, AGED ABOUT 59 YEARS, R/AT KUBTUR VILLAGE, SORABA TALUK, SHIMOGA DISTRICT-571213.
... RESPONDENT (BY SRI MAHESH R. UPPIN, ADVOCATE) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE ORDER DATED 24.6.2014 IN EX.NO.5/2011 PASSED BY THE LEARNED CIVIL JUDGE AND JMFC, SORABA VIDE ANNEXURE-E ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The Judgment Debtor filed the present writ petition against the order dated 24.6.2014 in Ex. No.5/2011 allowing the application filed by the decree holder and ordering to send the judgment debtor to Civil Prison for 15 days.
2. The respondent – decree holder filed O.S. No.76/1997 for Permanent Injunction in respect of the suit schedule property mentioned therein. After contest, the suit came to be decreed on 10.4.2014. Aggrieved by the said order, the present petitioner filed R.A. No.191/2017 before the lower appellate Court. The lower appellate Court dismissed the appeal on 27.6.2008. Aggrieved by the concurrent findings of facts recorded by the Courts below, the present petitioner filed RSA No.1865/2008 before this Court, which also came to be dismissed on 4.11.2010. Thereafter the decree holder filed Execution No.5/2011 and also filed application under Section 151 of the Code of Civil Procedure for arrest and detention of the present petitioner for disobedience of the order passed by the trial Court, which is confirmed by the lower appellate Court and this Court. The said application was opposed by the judgment debtor and contended that he has not disobeyed the order. The trial Court proceeded to pass the impugned order on 24.6.2014 allowing the application filed by the decree holder. Hence the present writ petition is filed for the reliefs sought for.
3. I have heard the learned counsel for the parties to the lis.
4. Sri H. Dayananda Saraswathi, learned counsel for the petitioner – judgment debtor contended that the impugned order passed by the trial Court ordering to send the petitioner to civil prison for 15 days without conducting any enquiry as contemplated, is in utter violation of Article 21 of the Constitution of India. Therefore the impugned order cannot be sustained. He would further contend that the trial Court ought to have held enquiry as contemplated under Order 21 Rule 32(1) of the Code of Civil Procedure and satisfy that the judgment debtor had an opportunity of obeying such decree, but has willfully failed to obey such decree. In the absence of any such finding, the impugned order passed by the trial Court cannot be sustained.
5. Per contra, Sri Mahesh R. Uppin, learned counsel for the respondent – decree holder sought to justify the impugned order and contended that though the decree was obtained in favour of the respondent as long back as in the year 2004, till today the decree holder is not able to enjoy the fruits of the decree. The judgment debtor has disobeyed the order passed by the trial Court, which is confirmed by the lower appellate Court and this Court. He would further contend that the judgment debtor filed objections to the application filed by the decree holder contending that inspite of the decree, still he is possession of the property in question. Therefore he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is an undisputed fact that the suit filed by the present respondent in O.S. No.76/97 for Permanent Injunction which came to be decreed on 10.4.2004. The same came to be confirmed by the lower appellate Court and also this Court. Therefore the judgment & decree passed by the trial Court has reached finality. It is the specific case of the decree holder that the judgment debtor disobeying the order passed by the trial Court, still interfering with the suit schedule property contending that he is in possession of the property.
7. The trial Court considering the application and the objections by the impugned order allowed the application mainly on the ground that despite the judgment debtor having suffered before the lower appellate Court and this Court and the order of the trial Court having reached finality, still the judgment debtor is contending that he is in possession and enjoyment of the suit schedule property. The very contention of the judgment debtor that still he continues to be in possession and enjoyment of the suit schedule property in contradiction to the findings given by the trial Court, first appellate Court and this Court, clearly shows that there is violation of order of the Court with regard to Permanent Injunction. Hence, there is necessity for the Court to intervene in order to protect the possession of the decree holder and uphold the decree of the Court. Therefore allowed the application.
8. By careful reading of the provisions of Order 21 Rule 32(1) of the Code of Civil Procedure, it clearly indicates that the person seeking execution of the decree for injunction by detention of the person bound by the decree in civil prison must place materials before the Executing Court that the person had an opportunity of obeying such decree, but has willfully disobeyed the decree. Mere contention of the learned counsel for the judgment debtor that inspite of the decree suffered, he is in possession, is not a ground to send the judgment debtor to the civil prison without recording finding on the basis of the materials produced by both the parties that the judgment debtor had an opportunity of obeying such decree, but has willfully disobeyed the decree. In the absence of such finding, the impugned order cannot be sustained. My view is fortified by the dictum of this Court in the case of Shivamurthy v. Dannammadevi Cycle Mart, Rabakavi reported in AIR 1987 KAR. 26, wherein at paragraphs 6 and 7 it is held as under:
“6. Sub-rule (1) of R. 32 of 0. XXI of the Code, in so far it is material for the present discussion, reads thus :
"Where the party against whom a decree ................ 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 enforced. …. in the case of a decree…… for an injunction by his detention in the civil prison . "
The sub-rule, as seen from its clear and explicit language, provides that a decree for injunction passed against a party could be enforced by his detention in a civil prison, if he has willfully failed to obey such decree despite having had an opportunity of obeying it. In other words, the sub-rule, no doubt, enables a holder of a decree for injunction to seek its execution from the executing Court by requiring it to order the detention of the person bound by the decree, in a civil prison. But, the Court cannot, according to the same sub-rule, make an order for detention of the person unless it is satisfied that that person has had an opportunity of obeying the decree and yet has willfully disobeyed it.
7. If regard is had to the above scope and ambit of the sub-rule, it follows that the executing Court required to execute the decree for injunction against the person bound by that decree, by ordering his detention, cannot do so without recording a finding on the basis of the materials to be produced by the person seeking the execution of the decree that the person bound by the decree, though has had an opportunity of obeying the decree, has willfully failed to obey it, as a condition precedent. Hence, what is required of the person seeking execution of the decree for injunction under the sub-rule is to place materials before the executing Court as would enable it to conclude (i) that the person bound by the decree, was fully aware of the terms of the decree and its binding nature upon him; and (ii) that that person has had an opportunity of obeying such decree, but has willfully, i.e., consciously and deliberately, disobeyed such decree, so that it can make an order of his detention as sought for. Thus, the onus of placing materials before the executing Court for enabling it to record a finding that the person against whom the order of detention is sought, has had an opportunity of obeying the decree for injunction, but has willfully disobeyed it, lies on the person seeking such order of detention, lest the person seeking deprivation of the liberty of another cannot do so without fully satisfying the Court about its need.”
9. For the reasons stated above, the Writ Petition is allowed. The impugned order passed by the trial court is hereby set aside and the matter is remanded to the Executing Court to proceed afresh and pass appropriate orders strictly in accordance with the provisions of Order 21 Rule 32 of the Code of Civil Procedure and in the light of the observations made by this Court in the present writ petition and in accordance with law.
10. Since the matter is of the year 2011 and we are in the year 2019, the Executing Court is directed to expedite the Execution itself within a period of six months from the date of receipt of copy of this order.
Ordered accordingly.
Sd/-
JUDGE Gss/-