E.R. Ranganathan vs Sarojammal

Abdul Hadi, J.—The plaintiff decree-holder has filed this revision against the dismissal, of his Execution Petition No. 1916 of 1991 in O.S.

No. 4686 of 1990 on the file of X Assistant City Civil Court, Madras, on 9.12.1993. E.P. No. 1916 of 1991 was filed by the plaintiff for arrest of

the judgment-debtor/respondent for detention in the civil prison and for attachment of her movables. The said execution petition has been filed

under Order 21, Rule 32(1), C.P.C. for executing the decree of injunction obtained in O.S. No. 4686 of 1990, dated 27.3.1991, restraining the

respondent from interfering with the possession by the petitioner of the property in question. The court below has dismissed the execution petition

on two grounds, viz., (1) the respondent is a woman and she cannot be arrested; (2) it is not stated by the petitioner specifically that the

respondent has acted contrary to the said decree.

Learned Counsel for the petitioner submits that both these two alleged reasons cannot be sustained at all. According to him, only in the case of

money decree, Section 56, C.P.C. prohibits the arrest of women judgment-debtors. Secondly, he points out that apart from stating in the affidavit

filed in support of the execution petition, the petitioner has also given evidence, showing how the respondent has violated the decree.

Learned Counsel for the respondent on the other hand submits that the remedy under Order 21, Rule 32 is a discretionary remedy and there is

no reason for interfering with the exercise of that discretion by the court below.

I have considered the rival submissions regarding the abovesaid two reasonings of the court below. Section 56, CPC is clear that there is

prohibition against arrest of a women judgment-debtor only in the case of money decree. The said section runs as follows:

Notwithstanding anything in this part, the court shall not order the arrest or detention in the civil prison of a women in execution of a decree for the

payment of money.

But, as already pointed out this is not a case of money decree; it is only an Injunction decree and the only way of executing the decree is as is

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

Secondly, regarding the abovesaid second reasoning of the court below, the averments in the affidavit of the execution petition is as follows:

Subsequent to the decree passed by this Hon''ble Court, the judgment-debtor expected to obey the decree dated 27.3.1991, but he has wilfully

failed to do so in utter disobedience and disregard to the decree that is passed by this Court, the judgment-debtor continues to enter upon the suit

property with a view to put up a thatched hut. The judgment-debtor has no right in law to do so.... The judgment-debtor has been virtually entering

upon the suit property everyday and the complaints given in this regard to the Inspector, F-2 Police Station has not been of any use as the

judgment-debtor has brought political pressure to solve any remedial measures to be taken by the Inspector, F-2 Police Station to give effect to

the decree passed by this Honourable Court.

Apart from this averment in the supporting affidavit, he has deposed in his chief examination thus:

In the cross-examination also, there is only a reiteration of what is said in the chief, thus:

Therefore, what is observed by the court below is factually wrong. In the above circumstances, the court below has certainly committed error of

jurisdiction and there is very good reason for setting aside the order of the court below u/s 115, C.P.C.

To fortify the above conclusion it may also be noted that a Commissioner was appointed in the execution proceeding to note down the

encroachment of the respondent and after inspection, the Commissioner in his report, after initially saying that he was appointed to ""note down the

present possession and encroachment if any, by the respondent, ""finally concludes thus, ""hence there appears an encroachment to the extent of 9

feet east to west and 20'' 5"" North to South totally measuring 184 square feet.

No doubt, Order 21, Rule 32, C.P.C. provides a discretionary remedy. But it is clear that in view of what I have stated earlier, the said

discretion has not at all been exercised properly and judicially. Therefore, there is a clear error of jurisdiction committed by the court below, it

having exercised its jurisdiction with material regularity.

Accordingly, allowing the execution petition, the impugned order is set aside and this civil revision petition is allowed with costs.