Lakshmamma and Others vs B.K. Ramesh

Aravind Kumar, J.—Judgment debtor in Execution petition No. 79/2013 is assailing order dated 23.03.2015 passed by II Addl. Civil Judge, Mysore on I.A. No. 4 whereunder application filed by decree holder for grant of police help directing the Station House Officer of Mysore South Police Station to implement the judgment and decree passed in O.S. No. 3/2002 has been allowed.

I have heard the arguments of Sri B.S. Nagaraj, learned Advocate appearing for petitioner -judgment debtor and Sri P.A. Kulkarni, learned Advocate appearing for respondent - decree holder.

Sri B.S. Nagaraj, learned Advocate appearing for writ petitioner would submit that though in the present writ petitions, order dated 19.12.2014 dismissing the application - I.A. No. 3 filed under Section 11 read with Section 151 CPC has also been questioned, he would not press the said prayer. His submission is placed on record.

It is the contention of Sri B.S. Nagaraj, learned Advocate appearing for petitioner that Executing Court could not have allowed I.A. No. 4 filed by the decree holder and directed the police to implement the decree passed in O.S. No. 3/2002 and same is contrary to the provision Order 21 Rule 32 CPC. In support of his submission, he has relied upon judgment of coordinate Bench of this Court in Gangadharappa Vs. Smt. Kanthamma, .

Per contra, Sri P.A. Kulkarni, learned Advocate appearing for respondent - decree holder would support the impugned order and contends that Executing Court in order to implement and execute the decree has exercised the power to direct the jurisdictional police to extend help to the decree holder and same is not contrary to Order 21 Rule 32 CPC and as such, he prays for dismissal of the application.

Perusal of the records would indicate that respondent - decree holder had filed a suit in O.S. No. 3/2002 against writ petitioner - defendant herein and four others in respect of four items of the properties for permanent injunction. Said suit came to be decreed by judgment and decree dated 05.06.2003. On account of alleged disobedience of said decree, Execution petition No. 18/2002 came to be filed by decree holder and it came to be dismissed on 12.10.2012 since as on that date, miscellaneous petition filed by judgment debtor in Misc. No. 13/2005 was pending and had not been disposed of. It is thereafter on 23.01.2012 Misc. No. 13/2005 being dismissed, Execution petition No. 79/2013 came to be filed afresh seeking for arrest and detention of judgment debtor and attachment of their properties for having violated the terms of decree. Application I.A. No. 4 was filed under Section 151 CPC seeking for direction to the jurisdictional police to implement the judgment and decree passed in O.S. No. 3/2002 which came to be resisted by judgment debtor by filing objections and on adjudication thereof, Executing Court has allowed the same by the impugned order by arriving at a conclusion that interference by judgment debtors-1 to 5 is apparent and also concluding that judgment debtors have intentionally threatened the Court in obstructing adjudication of the application, and as such, to enforce the decree of perpetual injunction on the ground of disobedience for having indulged in digging the trench in suit schedule property, direction to the jurisdictional police has been issued to extend Police help to execute the decree.

Order 21 Rule 32 CPC reads as under:

"32. 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 1(in the case of 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 or for an injunction has 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 1(six months) if the judgment- debtor has not obeyed the decree and the decree holder has applied to have attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree holder such compensation as 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 where, at the end of 1(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."

A bare reading of above provision would clearly indicate that where decree holder has obtained a decree of injunction would be entitled to maintain Execution petition seeking for the judgment debtors being detained in civil prison or attachment of his/their property or by both where the judgment debtor/s willfully failed to obey the decree that is sought to be enforced. Thus, it would be incumbent upon the decree holder to prove willful disobedience of the decree by the judgment debtor. Wilful disobedience is a question of fact or existence of which has to be inferred from direct or circumstantial evidence. If the decree holder satisfies the Court that judgment debtor had an opportunity of obeying the decree but has willfully failed to obey it, decree can be executed under Order 21 Rule 32(1) CPC i.e., by detaining the judgment debtor in Civil Prison or by attachment of his property or by both.

In a given case, decree holder may establish the factum of wilful disobedience by the judgment debtor. If the conduct of judgment debtor as revealed from his plea read with circumstances of the case leads to a conclusion that said conduct was deliberate one and judgment debtor was consciously attempting to ignore the decree or obstruct the decree, then, Executing Court would be justified in drawing the inference that there is willful disobedience. The nature of evidence that will have to be tendered as also the quantum of such evidence that would required to be tendered cannot be prescribed in an abstract formula, it depends on facts and circumstances of each case. In other words, there cannot be any straight jacket formula in this regard. Based on such evidence that would be tendered, Executing Court can arrive at a conclusion about there being willful disobedience on the part of the judgment debtor and then proceed further.

Be that as it may. The core issue involved in this petition revolves around extending police help to execute the decree.

A bare reading of Order 21 Rule 32 CPC does not even remotely suggest that such power having been granted to the Executing Court insofar as decree for perpetual injunction is concerned. Where the decree relates to an immovable property and their being a mandatory injunction or decree for either of possession, in such circumstances to execute such decree, necessarily Executing Court can order for extending police help. Further, facts and circumstances of the present case obtained would clearly indicate that in the instant case, decree that has been obtained by the decree holder is for perpetual injunction, as such, when a decree for perpetual injunction is obtained and there has been willful disobedience on the part of the judgment debtor, course left open to the Executing Court is to either detain judgment debtor in civil prison or attach his/her property or both. It does not empower the Executing Court to direct the police help for execution of the decree for perpetual injunction. Firstly, Executing Court has to arrive at a conclusion that there has been willful disobedience of the decree by Judgment debtor which is sought to be implemented or executed by the decree holder and it is thereafter mode prescribed under sub-rule (1) of Order 21 Rule 32 CPC can be resorted to by the Executing Court. This view is fortified by law laid down in the case of B. Ramakrishna and Another Vs. M. Nagaraju and Others, (Andhra Pradesh) and judgment of this Court in Gangadharappa Vs. Smt. Kanthamma, . This Court in Gangadharappa''s case has held as follows:

"4. It is the contention of the Counsel for the petitioner that in view of Order 21 Rule 32 , it is impermissible for the petitioner to seek Police Protection. The provision of Rule 32 clearly envisages the mode and manner of execution of decree for injunction granted. The decree holder on proof of non compliance of terms of decree can secure the detention of the judgment debtor in a Civil prison and can also seek sale or attachment of the property. The Court has jurisdiction to grant compensation from out of sale proceedings."

In the aforestated circumstances, this Court is of the considered view impugned order allowing I.A. No. 4 cannot be sustained.

Hence, I proceed to pass the following:

"(1) Writ Petition No. 22786/2015 filed challenging the order dated 19.12.2014 (Annexure-A) passed on I.A. No. 3 by II Addl. Civil Judge, Mysore in Execution Petition No. 79/2013 is dismissed.

(2) Writ Petition No. 25530/2015 is hereby allowed.

(3) Order dated 23.03.2015 passed by II Addl. Civil Judge, Mysore on I.A. No. 4 in Execution Petition No. 79/2013 (Annexure-B) is hereby quashed.

(4) Decree holder is at liberty to proceed in accordance with law in the pending Execution petition."

Ordered accordingly.