Harish Lal Verma vs Pyare Lal Sah

Rajesh Tandon, J.—Heard Shri Sharad Sharma, counsel for the Appellant and Shri M.C. Pandey, counsel for the Respondent.

By the present appeal filed under Order 43 Rule (i) read with Rule (r) of Code of Civil Procedure, the Appellant has prayed for setting aside the judgment and order dated 4-11-2003, passed by the Additional District Judge, Nainital by which the execution application under Order 21 Rule 32 of the CPC has been allowed by passing the order for two months'' civil imprisonment.

Briefly stated, a suit being suit No. 41 of 1980 was filed by Pyare Lal praying for the decree of permanent injunction. The trial court vide order dated 29-6-1995 has granted the decree. The operative portion of the order passed by the trial court is reproduced below:

? ? ? ? ? ? 8 - 10 - 1980 ? ? ? ? ? 8 - 10 - 80 ? | ? ? ? ? ? ? ? ? ? ? ? ? | ? ? ? |

The Defendant went in appeal. The appellate court has confirmed the appeal and passed an order to the following effect:

? ? ? ? ? ? ? ? , ? ? ? ? ? ? ? ? ? , ? | ? ? ? ? ? ? |

Application Order 21 Rule 32 of CPC was filed to the following effect:

? 21 32 . .

? ? ? 41 1980

? - ? ? ? ? ? . 202 ? ? ? | 1. ? ? ? ? 2. ? ? ? ? ? . . ? ? ? ? ? ? ?

3 . ? ? ? 29 - 6 - 1985

? - ? ? ? ? 59 1985 ? 5 - 7 - 88 ? ? ? ? |

- ? ? ?

? ? ? ?

? ? ? ? . 42.00 . ? . 04.50 . ? ? ? . 300.00 . ? . 500.00 . 17500.00 . 175846.00

? ? ? ? . 42.00 ? ? . 4.50

? ? ? ? 1 ? 2 ? ?

? ? ? ? ?

?, ? ? ? 41 1980 29 - 6 - 1985 ? 59 1985 ? ? ? ? ? 5 - 9 - 89 ? ? ? ? ? ? | ? ? ? ? | ? ? 1 ? 1 | ? 14 - 5 - 2003 6 - 7 ? ? ? ? ? ? ? 1 ? ? ? | ? ? ? ? ? ? ? ? ? ? ? ? ? ? | ? ? ? ? ? ? ? ? ? 2 ? ? ? ? ? ? ? | ? ? ? ? ? ? ? ? ? ? ? ? 21 ? 32 . . ? ? ? ? | : ? ? ? ? ? ? ? |

? 2 ? ? ? ? |

? 1 ? 2 ? ? |

?. ? ? ? . . 2435 - 68

?. ? . . . 9993

?. ? 2 ? ? ? ? ? ?

? ? ? ? 75000.00 1 ? ? ? ? ? ? |

Objections were filed by the Nagar Palika and Shri Harish Lal Verma stating therein that the application is not maintainable and the decree to which the decree hoider wants to execute under Order 21 Rule 32 of CPC is not executable, in paragraphs 4, 5, 6, 7, 8, 9,10 and 11 of the objection are quoted below:

That the present execution application not maintained against the J.D. No. 2 in person as he is neither the party in the suit nor in the decree under execution.

That the execution application of the D.H. is not maintainable against the J.D. No. 2 as he is not the juristic person.

That as the D.H. has prayed for the imprisonment (civil) to the J.D. No. 2 but the D.H. as not deposited the expenses of the civil prison, so the execution....

That the present application Under Order 21 Rule 32 CPC is not maintainable.

That it is wrongly alleged by the D.H. that the J.D.s have demolished the structure on 14-5-03 at between 6-7 evening inspite of showing them the orders of the honourable court. The real facts are that as per the directions of the honourable High Court given on 13-5-03 in P.I.L. No. 566 of 2001 Registrar High Court v. State of Uttaranchal and Ors. the then E.O. approached to the D.H. in the morning of 14-5-03 to remove his structure above the land and also given the time to remove the structure but when up to 3 O''clock the D.H. did not remove the structure then the officials of the Nagarpalika went at the spot at about 3.30 of evening and requested to the D.H. to remove the structure, then on the request of the Nagarpalika the D.H. himself removed the goods of the shop and the counter and racks of the shop and the shutter of the shop.

That the roof and two side structure is still at the spot. So it is wrong to say by the D.H. that any force was used by the J.D.s and it is also wrong to say that the J.D.s have caused any damage to the D.H.

That it is totally wrong version of the D.H. that the J.D. No. 2 acted in the manner mentioned in the execution application or ever dare to through out the order of the honourable court as alleged by the D.H. The real facts are that no such orders ever been shown by the D.H. to the J.D.s and it is also wrong to say that any such order was in the knowledge of the J.D. No. 2 at that time.

That the J.D. No. 2 the then E.O. only complied with the direction of the honourable High Court and again in pursuance of the directions of the Honourable High Court dated 21-05-03 the J.D. No. 2 the then E.O. also initiated the proceedings to rehabitate to the D.H. after the compliance meeting of the D.M. Nainital conducted on 20-05-03 and 29-05003 in the president ship of the D.M. Nainital in which in the meeting dated 20-05-03 in item No. 8 of the proceeding of the meeting the matter of D.H. was discussed and to give support to this contention the objectors are filling the documents separately along with list.

As stated above, before dealing with the aforesaid objections, it may be pointed out that the demolition of the construction was undertaken in pursuance of the orders passed in the PIL.

As mentioned aforesaid, the order of the High Court passed in PIL No. 562/2002 The Registrar High Court v. State of Uttarakhand and Ors. is quoted below:

Parties shall submit progress report by 20-5-2003 with regard to removal of encroachment in Mall Road, removal of garbage and cleaning of the city, cleaning of lake, water, removal of encroachments on the road and road sides, ''Balia Nala'' plantation on the land slopes and improving facilities, allotment of horse-stand to individuals, construction on Talli Tal Horse Stand, unauthorised construction/encroachment at Tallital mosque, encroachment on the road leading to Clerk Quarters in Tallital, which was earlier prohibited for parking, removal or unauthorised occupants/private residents from Dharamshaia in Tallital, Cattle pound, Mallital and posting of doctors in the B.D. Pande Hospital, Nainital.

The Nagar Palika has passed the resolution in its meeting. The same is quoted below:

? ? ? ? ? ? ? ? ? ? ? ? ? ?, ? 24 - 5 - 2003 ? ? |

Order 21 Rule 32 of CPC reads as under:

Decree for specific performance for restitution of conjugal rights, or for an injunction-(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or 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 restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance of for an injunctions been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.

(3) Where any attachment under Sub-rule (1) or Sub-rule (2) has remained in force for [261] [six months] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be should and out of the proceeds the Court may award to the decree-holder such compensations it thinks fit and shall pay the balance (if any) to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or here, at the end of [262] [six months] from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

As will appear from Order 21 Rule 32 of CPC that where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed and he has willfully failed to obey the same, may be enforced by his detention in the civil prison.

In the present case, the Appellant was not party himself and the decree was passed against the Municipal Board. The specific objections made in paragraphs 4 and 5 have not been taken into consideration while passing the order for detaining him in the civil prison.

In Yashpal Singh Vs. VIII Addl. District Judge and Others, , same controversy arose before the Apex Court where the Apex Court has observed that Order 21 is applicable to a party against whom a decree for injunction had been passed. The observations of the Apex Court are quoted below:

It is significant and patent that this provision is applicable to a party against whom a decree for injunction had been passed. Admittedly, the Appellant was not a party to the suit in which the injunction was granted. It may be true that the Forest Department of the State of U.P. and the State of U.P. were parties an being an employee of the State of U.P. the Appellant is in an indirect way bound by the injunction but it cannot be said that he was by himself a party to the suit as such against whom the said decree was passed. The word ''party'' cannot be construed so liberally so as to include each and every employee of the State of U P. to have been a party to the suit in which the injunction was passed. The intention manifested in the provision seems to confine the rigour to the party who had contested the suit and had suffered the decree and it is that party when obstructing is liable of being detained in civil prison, or suffer attachment of his property, or both. Thus we are of the considered view that on either count the Appellant need not suffer action under Order 21 Rule 32 CPC or to remain under threat of attachment of his property, more so when he is no longer available at the scene to obstruct any more, or to expose his property to such supposed attachment.

In view of the aforesaid, since the Appellant was not a party to the decree and, therefore, no decree having been passed against him which is sought to have been disobeyed and therefore, the present appeal is liable to be allowed and the order passed by the Additional District Judge, Nainital in Civil Execution Suit No. 27 of 2003 with regard to civil imprisonment of the Defendant-Appellant for a period of two months is liable to be set aside.

In view of the aforesaid, appeal is allowed and the order dated 4-11-2003 is quashed.