Govindan Thankappan vs Arulayi Elsi and Another

AR. Lakshmanan, Ag. C.J.

This revision is directed against the order passed by the Second Additional Munsiff, Neyyattinkara, allowing an application filed by the respondents herein/ decree holders for violating the decree in O.S.No.447 of 1989. The petition has been filed under Order XXI Rule 32 and Section 151 of the Code of Civil Procedure. The petition filed by the respondent herein before the court below, which is in Malayalam, was read out and translated to me in English at the time of hearing. There is no specific averment that the petitioner herein, despite the opportunity of obeying the decree, wilfully failed to obey it and hence the execution of the decree has become necessary. Except from making a bald statement that the petitioner herein trespassed into the plaint C schedule property and committed theft, there is no specific averment in the execution petition as to how and when exactly the petitioner wilfully disobeyed the decree passed by the court below. The case of the respondents as stated in the petition has been improved by them by letting evidence at the time of trial of the petition. It has been held by this court in a catena of decisions that Order XXI Rule 32 is not intended to punish a contumacious party and that it can be invoked only for enforcement of a decree. Detention in civil prison or attachment of property can be resorted to only so long as decree stands unenforced. According to the Revision Petitioner, he has not trespassed into the suit property and he has no intention to trespass into the said property in future also. It is submitted that he has only a small bit of land and a hut in which he and his family members are residing. It is specifically stated in the revision petition that the petitioner has no intention to violate the decree of court and he has not the capacity even to know about the implication of a decree of court.

There is absolutely no evidence to show that the revision petitioner wilfully and deliberately violated the decree of court. This apart, no damage is also claimed by the decree holder. In these circumstances, I am of the opinion that the order attaching the property of the petitioner herein is clearly illegal and liable to be set aside. In the instant case, the court below failed to note that the decree holder has not specifically alleged that the revision petitioner committed acts of violation of the decree on any particular date and that the decree holder suffered any specific damage due to such acts. Only vague allegations are raised in the execution petition and the affidavit filed along with the petition. The court below failed to note that the property of the revision petitioner can be attached only for a specific amount and the intentions of Order XXI Rule 32 is to enforce the decree and to restore the loss caused to the decree holder by the acts of the judgment debtor. The order of the court below attaching the property of the revision petitioner and sending him to civil prison for an alleged act not causing any specific damage to decree holder is illegal and wrong.

In view of the above, the order of the court below, which is impugned in these proceedings, is liable to be and is hereby set aside. The revision petition is allowed as above. There will be no order as to costs.