Arjuna Gounder vs Govindaraju Reddiar

Srinivasan, J.—This civil revision petition is directed against the dismissal of an application u/s 47, C.P.C. filed by the petitioner herein for a

declaration that the proceedings in E.P. No. 271 of 1987 are invalid and for dismissal of E.P. No. 271 of 1987.

The short facts which are relevant for the purpose of this revision petition are as follows:

The respondent obtained a decree for declaration of his title and for an injunction restraining the petitioner from interfering with his possession. The

decree was passed on 20.6.1986. The respondent filed E.P. No. 271 of 1987 under Order 21, Rule 10, C.P.C. for execution. In the relief

column, he prayed for an order under Order 21, Rule 32, C.P.C. for arrest of the petitioner herein for having disobeyed the decree and also for

attachment of the properties of the petitioner and sale of the same. It is stated in the execution petition that the respondent had incurred a loss of

Rs.20,000 on account of the petitioner''s disobedience of the decree. No doubt, the portion relating to the claim of Rs. 20,000 was inserted in the

execution petition, but there is nothing on record to show that it was done after the execution petition was presented in Court. In all probability, it

was done even when the execution petition was filed in Court.

The petition was presented on 1.4.1987. Notice was ordered to the petitioner, returnable on 29.4.1987. It was served on the petitioner and he

entered appearance through his council on 29.4.1987. He was granted time to file a counter till 22.6 1987. The matter was called on 22.6.1987

and reposted to 8.7.1987 as the Judge was on casual leave. On 8.7.1987 the petitioner has filed his counter, which actually bears the date

24.6.1987. In the counter affidavit, the petitioner referred to the pendency of an application to set aside the ex parte decree and contended that the

execution petition was not maintainable. The petitioner herein did not make any specific reference to the claim of the decree-holder, the respondent

herein, that the petitioner had wilfully disobeyed the decree. The explanation given by the learned Counsel for the petitioner herein is that the notice

served in the Execution Petition merely referred to the claim of the decree-holder for costs granted in the decree in a sum of Rs. 169 and odd and

from the notice the petitioner could not know that there was a prayer under Order 21, Rule 32, C.P.C. Assuming that the same is true, such a plea

is not available to the petitioner as he had entered appearance through his counsel and the counsel ought to have looked into the execution petition

and found out the exact position. The counter statement or counter affidavit should have been filed only after the verification of the execution

petition by the counsel.

The matter was actually taken up for disposal on 22.10.1987. On that day, the petitioner herein was absent and set ex parte. The Executing

Court passed an order of attachment straightway without giving any finding as to whether the petitioner was guilty of disobedience of the decree.

The order passed on 22.10.1987 reads as follows:

The respondent called absent. Set ex parte. Attach by 17.11.1987.

Pursuant to that order, the immovable properties of the petitioner herein were attached and the petitioner has produced the attachment notice.

That notice refers only to the claim for a sum of Rs. 169.25. Nobody can say from the attachment notice that it was made in an application under

Order 21, Rule 32, C.P.C.

The petitioner did not however take any steps to have the attachment raised. The execution petition was continued and the decree-holder was

directed to file sale papers. Ultimately, he filed sale papers and the sale was held on 2.5.1990.

In the meanwhile, the petitioner filed an application u/s 47, C.P.C. on 12.2.1990. That application was contested by the respondent herein. The

Court passed an order on 22.3.1990 dismissing the application. The reasoning of the Executing Court is that the petitioner who had notice in the

execution proceedings did not state anything about the disobedience of the decree in the counter filed by him and he had sufficient opportunities to

have the ex parte order passed on 22.10.1987 set aside and raise the attachment subsequently when it was ordered. Inspite of the said

opportunities, the petitioner, having not taken any steps either to raise the attachment or to set aside the ex pane order in the execution

proceedings, it was not open to him to file an application u/s 47, C.P.C. questioning the validity of the execution proceedings. The Executing Court

took the view that the remedy of the petitioner was only to set aside the order dated 22.10.1987 and he, having failed to do so, was not entitled to

maintain an application u/s 47, C.P.C. It is the said order which is questioned in this civil revision petition.

Order 21, Rule 32(1) C.P.C. provides that, where a decree is for specific performance of a contract or for restitution or conjugal rights, or for

an injunction and the party against whom such a decree has been passed has had an opportunity of obeying the decree may be enforced by the

attachment of his property or by detention of the said party in the civil prison. It is seen from the said Sub-rule that two conditions must be

established. One is that the party had an opportunity to obey the decree and the other is that the party had wilfully failed to obey it. Unless the two

conditions are satisfied, the Court cannot order attachment or detention in civil prison. Even if both the conditions are satisfied, still it is the

discretion of the Court to order attachment or detention in civil prison. It has been held that if the Court had failed to apply its mind to exercise the

discretion judiciously, then any order passed under Order 21, Rule 32, C.P.C. is bad.

In the decision reported in Pedapudi Nookarathnam v. Pedapudi Venkata Surayanarayana ILR 1949 Mad. 589 Rajagopalan, J., pointed out

that Order 21, Rule 52, (1) confers a discretion on the Court and the Court should exercise the same judiciously. It was also held by the learned

Judge that a decree-holder was not automatically entitled to attachment of the moveables, even in the event of a wilful failure on the part of the

judgment-debtor to obey the decree.

In V.S. Alwar Ayyangar Vs. Gurusamy Thevar, , Balasubramanyan, J., held that for an executing Court to act under Order 21, Rule 32 of the

Code, there must be evidence of wilful disobedience of a decree for injunction. The learned Judge accepted the contention that the onus was on

the decree-holder to prove that there was such wilful disobedience.

In Shivamurthy Mahalingappa Kuchanaur Vs. Dannamma devi Cycle Mart, Rabakavi, , the same proposition is reiterated. It was held that

where the executing Court ordered detention of the judgment-debtor in civil prison on the finding that he had wilfully disobeyed the decree for

injunction merely on the basis of rival arguments heard by it and not on the basis of any material placed before it by the parties, the order of

detention would be invalid.

Learned Counsel for the respondent herein contends that in the present case the principle of res judicata would apply. According to him, the

order dated 22.10.1987 was made by the Court because the petitioner herein was ex parte. Even an ex parte order is binding on the parties.

Learned Counsel also brings to my notice that in the counter affidavit filed in the execution proceedings mere was no denial of the allegation made

by the decree-holder in the execution petition that the judgment debtor was wilfully disobeying the decree. On the other hand, the counter affidavit

is completely silent on that aspect of the matter. Hence it is contended by learned Counsel that when the matter was not put in issue, it was open to

the Court to accept the decree-holder''s averment in the execution petition about the wilful disobedience of the decree and proceed to pass further

orders on that basis. According to the learned Counsel, the principle of res judicata would apply to execution proceedings. It is not open to the

judgment debtor to come forward with an application u/s 47, C.P.C. to declare that the execution proceeding is invalid, after having allowed the

orders in the execution petition to become final. According to learned Counsel, the only remedy of the judgment debtor was to have applied for

setting aside the ex pane order dated 22.10.1987 directing attachment of the properties.

Learned Counsel placed reliance on a judgment of mine in Mangalammal and Another Vs. T. Lalitha and Others, . In that case, I held that the

principle of res judicata was applicable to a proceeding in execution of a decree even prior to the introduction of Explanation VII to Section 11 of

the CPC by the Amendment Act 104 of 1976. I also held that after the amendment of the Section, it could be invoked in execution proceedings on

its own terms. On the facts of the case, I held that the orders of attachment made by the executing Court had become final as there was no attempt

by the judgment-debtor in that case to have it set aside by moving the same Court or by approaching a higher forum by way of revision or appeal

and it was not open to the judgment debtor to raise an objection at a later stage for payment of amount to the decree-holder after the amount was

brought to the executing court pursuant to the order of attachment. I had also pointed out that if an order of Court was based upon a particular

finding of fact then the only remedy to the party affected was to have that order set aside as that finding will be binding on such party in subsequent

proceedings.

The said judgment will not apply to the present case. The provisions of Order 21, Rule 32, C.P.C. are extremely penal. In fact a proceedings

under Order 21, Rule 32, C.P.C. is a proceeding for punishment of properties as well as detention in civil prison is provided for in the rule even in

execution of a decree for restitution of conjugal rights, specific performance and injunction. In fact under Sub-rule (3) the properties, which are

attached under Sub-rule (1) could be sold without the Court deciding the quantum of compensation, if any, payable to the decree-holder, on

account of the disobedience of the decree by the judgment-debtor under Sub-rule (3) and the Court is obliged to decide the quantum only after the

sale of the property is held. When the provisions are so severe against the judgment-debtor, it is the duty of the Court to construe the rule strictly

and the Court which passes orders under the rule must act strictly in accordance with the provisions of the rule. Thus, under Sub-rule (1) of Rule

32, the requirement which should be satisfied is that the judgment-debtor or having had opportunity to obey the decree has wilfully failed to obey

it. Unless and until the Court gives a finding to that effect, the Court is not entitled to pass any order of attachment or detention in civil prison. I am

of the view that the jurisdiction of the Court to pass an order of attachment of detention in civil prison arises only after giving a finding that the

judgment - debtor has wilfully disobeyed the decree after having had an opportunity to obey the same. In the absence of such a finding, any order

passed by the Court granting attachment or directing detention of the judgment debtor in civil prison is a nullity.

Hence, in the present case the order dated 22.10.1987 directing attachment of "" the judgment-debtor''s properties without a finding that the

judgment-debtor had wilfully disobeyed the decree is a nullity. Hence the consequential proceedings following that order are also invalid.

In the circumstances of the case, I am of the view that an opportunity must be given to the decree holder to prove that the judgment debtor and

wilfully disobeyed the decree, inspite of his having opportunities to obey the decree. That is because in the present case the judgment-debtor did

not in his counter filed in the execution petition dealt with the claim under Order -21, Rule 32, C.P.C. Hence an opportunity must be given to both

the parties to prove and contest the said claim respectively. The proper course to be followed in this case is to set aside the order of the executing

Court in E.A. No. 162 of 1990 dismissing the said application and allow the same partly with a direction to the. executing Court to take up E.P.

No. 271 of 1987 for disposal. The executing Court shall first decide the question whether the petitioner herein had disobeyed the decree inspite of

his having had an opportunity to obey the same. For the purpose of deciding the question, the Executing Court will record evidence. It is open to

both parties to let in evidence on that question must be decided on the basis of the materials placed before the Executing Court. If the Court comes

to the conclusion that the petitioner herein had disobeyed the decree after having had an opportunity to obey the same, the Court shall exercise its

discretion and decide whether an order of attachment should be made or whether the order of detention of the judgment debtor in civil prison

should be made. Thereafter appropriate orders should be passed by the executing Court. The civil revision petition is allowed to the extent

indicated above. No costs.