Andhra Pradesh High Court - Amravati

Katuri Veerraju vs Taninki Satyanarayana on 3 March, 2021

Bench: U.Durga Prasad Rao

        HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

     CIVIL REVISION PETITION Nos.1224 and 2839 of 2019

COMMON ORDER:

      Both the C.R.Ps. are filed by JDRs 9 to 13; while

C.R.P.No.1224 of 2019 is filed against the order in E.A.No.58 of 2019

in E.P.No.22 of 2018 dismissing the application to stay the executing

proceedings, the other C.R.P.No.2839 of 2019 is filed against the

order dated 21.02.2019 allowing the E.P.No.22 of 2018 and issuing

warrant against JDRs 9 to 13 to commit them to civil prison for

violation of injunction decree in O.S.No.1 of 2000.


2.    Shorn of unnecessary details, the two C.R.Ps. can be said to be

filed in the following background:


a)    O.S.No.1 of 2000 was filed by respondent/DHR/plaintiff on the

file of the Principal Junior Civil Judge, Tadepalligudem, initially

against defendants 1 and 2, who are his father and elder sister, seeking

perpetual injunction decree in respect of plaint schedule tiled house

and its appurtenant site. Pending suit, as the 1st defendant died, his

L.Rs. were brought on record as defendants 3 to 8. Defendants 2 to 8

filed written statement and contested the suit. The trial Court in para

13 of its judgment, while categorically holding that the plaintiff was in

continuous lawful possession of the schedule property, granted the

decree in his favour. It observed that the rights of the defendants, if

any, in respect of the plaint schedule property are concerned, they

have to be worked out in a separate suit.

UDPR,J

b) Aggrieved, the defendants filed A.S.No.43 of 2005 on the file

of the Senior Civil Judge, Tadepalligudem. Since the 2nd defendant in

the suit died, her L.Rs. were brought on record. The appellate Court

dismissed the appeal on 15.02.2017 by confirming the judgment of the

lower Court.

c) Thereafter, the plaintiff filed E.P.No.22 of 2018 against JDRs 9

to 13 under Order XXI Rule 32 CPC to commit them to civil prison

for violation of injunction decree. His plea was that JDRs 9 to 13

were causing obstruction and unnecessarily picking up quarrels with

him and throwing sand which was heaped by him for levelling the site

and to install fencing to safeguard his property. They were also

threatening to file false criminal cases against him. He thus sought to

execute the injunction decree against them. It appears, JDR No.9

filed counter contending that the DHR was trying to interfering with

JDRs' possession over the E.P. schedule property with the help of

rowdy elements and the employees of Padma Sai Finance. The DHR

and his men threw away the water storage container (kundi). The

JDRs have been in possession and enjoyment of the E.P. schedule

property since their childhood and the DHR by showing false tax

receipts obtained decree. The JDRs further contended that pursuant to

the observations in the judgment in O.S.No.1 of 2000, the JDRs filed

a declaration suit in respect of their shares and the said suit

O.S.No.____of 2018 and I.A.No.1232 of 2018 are pending

adjudication. Since the JDRs, who are the legal heirs of the 2nd UDPR,J

defendant are in lawful possession and enjoyment of the E.P. schedule

property, the question of their violating the decree does not arise.

d) The execution Court negatived the contention of the JDRs and

allowed the E.P. with the following observation:

"Moreover, once a permanent injunction decree is passed and the same is confirmed by the 1st appellate Court, the JDRs are supposed to obey the orders of this Court. The pleadings of the JDR itself show that they are in possession of the E.P. Schedule property which amounts to violation of permanent injunction decree passed in the above suit. Therefore, this Court safely concluded without going into other merits of the case that the JDRs 9 to 13 are interfering with the possession and enjoyment of the DHR over the E.P. schedule property. There are merits in this petition, the DHR is entitled to get his relief sought in this petition. Accordingly, this petition is allowed."

Thus, the execution Court held that the plea of the JDRs that they are

in possession of the E.P. schedule property itself amounts to violation

of the permanent injunction decree and so far, they have not taken any

steps to file declaration suit to work out their shares in respect of the

E.P. schedule property. On these observations, it allowed the E.P. and

consequently dismissed the stay application.

Hence the two C.R.Ps.

3. Heard learned counsel for the revision petitioners/JDRs Sri T.

Janardha Rao and Smt. Nimmagadda Revati, learned counsel for the

respondent/DHR.

4. The main plank of argument of learned counsel for the revision

petitioners is that in execution of injunction decree under Order XXI

Rule 32 CPC, the execution Court shall not order detention of JDRs in UDPR,J

civil prison on the mere averment of the DHR that the JDRs have

violated the injunction decree. On the other hand, having regard to

the fact that the personal liberty of the JDRs is at stake, the strict

compliance of Order XXI Rule 32 CPC is the sine qua non for

allowing the E.P. Viewing in that angle, learned counsel argued, it is

the bounden duty of the DHR to establish that the JDRs, despite

having an opportunity of obeying the injunction decree, still wilfully

failed to obey the same and thereby they have violated the terms of

the decree and liable for committing to civil prison. On the aspect that

mere disobedience is not sufficient and wilful disobedience should be

established to allow the E.P., he relied upon the following decisions:

1) U.C.Surendranath Vs. Mambally's Bakery1,

2) Ram nath Vs. Smt. Tapesara and others2,

3) Mujeeb Ahmed Khan Vs. Sadar Anjuman-E-

Islamia, Hyderabad3,

4) Kariyappa Vs. Haladappa4, and

5) Koya Ranga Reddy and others Vs. Koya Narayana Reddy and others5

Learned counsel further strenuously argued that in the instant case the

JDRs have been in lawful possession and enjoyment of the E.P.

schedule property since prior to the filing of the suit and therefore the

question of their committing disobedience of the decree neither arises

nor was established by the DHR. Further, as observed by the trial

Court in its judgment, the JDRs have filed a separate suit for

2019 (5) ALT 179 (SC)

AIR 1985 Allahabad 26

2002 Suppl. (1) ALD 770

AIR 1989 Karnataka 163

2007 (3) ALT 689 UDPR,J

declaration and stay application and both are pending. In this

backdrop, the execution Court was wholly misconceived in holding

that the JDRs committed violation of the decree and in allowing the

E.P.

5. In oppugnation, Smt. Nimmagadda Revati, learned counsel for

the respondent/DHR argued that in spite of the categorical finding

given by the trial Court as well as the appellate Court that the DHR

was in lawful possession of the E.P. schedule property, the blatant

claim of the JDRs that they have been in possession of the E.P.

schedule property itself would amount to gross violation of the

injunction decree. She argued that the conduct of the JDRs itself

manifests the wilful disobedience of the injunction decree and

therefore, no further specific proof need to be shown by the DHR to

execute the decree.

6. The point for consideration is:

Whether, while executing an injunction decree under Order XXI Rule 32 CPC, the DHR is obligated to establish that the JDR(s) has wilfully failed to obey the decree in spite of having an opportunity to obey and if so, in the instant case, the JDRs are guilty of such wilful disobedience?.

7. POINT: To consider the rival arguments, it is apposite to

extract Order XXI Rule 32 CPC which reads thus:

" Decree for specific performance for restitution of conjugal rights, or for an injunction - (1) Where the party against whom a decree for the specific UDPR,J

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 wilfully 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 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 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 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 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 can be seen from first proviso, the phraseology "has had an

opportunity of obeying the decree and has wilfully failed to obey it",

pellucidly manifests that mere disobedience of an injunction decree by UDPR,J

the JDR is not sufficient to hold him guilty but the burden rests on the

DHR to establish that the JDR had an opportunity of obeying the

decree and that he wilfully failed to do so. This principle has been

enshrined in a number of decisions.

8. In Surendranath's case (1 supra), Hon'ble Apex Court in the

context of Order XXXIX Rule 2(A) CPC has observed that there has

to be not a mere disobedience but it should be a wilful disobedience.

The allegation of wilful disobedience being in the nature of criminal

liability, the same has to be proved to the satisfaction of the Court.

The aforesaid observation, in my view, equally applies to the cases

under Order XXI Rule 32 CPC.

9. In Koya Ranga Reddy's case (5 supra), it was observed by a

learned single Judge of the common High Court of A.P. that when it

comes to the question of directing the detention of the JDRs under

Order XXI Rule 32 CPC, since the personal liberty is involved, the

strict compliance of the relevant provisions becomes mandatory. It

was further observed that mere existence of a decree for perpetual

injunction or for that matter, a mere complaint by the DHR against the

JDR is not suffice to direct the detention of JDR. Two facts are

necessary to be proved by the DHR. The first is that the JDR must

have an opportunity to obey the decree and second is that despite such

an opportunity, he had wilfully failed to obey it.

The other decisions cited by the revision petitioners also exposit

the same principle. Thus, there is no demur that in the instant case, UDPR,J

the DHR has to establish that the JDRs have had an opportunity of

obeying the decree and still they wilfully failed to obey the same.

10. Coming to the facts, it is the case of the DHR that JDRs 9 to 13

caused obstruction and entered into unnecessary altercation with him

and they threw away the sand which was kept by him to level the site

and to install a fencing to safeguard his property. Further, JDRs 12

and 13 were threatening him to file false criminal cases. It must be

noted that it is not the case of JDRs that after passing of decree, they

have had no connection with the E.P. schedule property and they have

not caused any acts of vandalism as alleged. On the other hand, the

averments in their counter are that even though an injunction decree

was passed against the JDRs, practically they are in possession of the

schedule property even prior to the execution of settlement deed in

favour of their mother and while passing the injunction decree, the

trial Court was pleased to direct their mother to work out her remedy

by way of a declaratory suit and in fact, such a suit was filed long

back and notices were sent to the DHR and receiving the same, the

DHR hastily filed the E.P. They reiterated that they are in peaceful

possession of the schedule property since long back.

11. So, from the above counter averments, the JDRs tried to

manifest that despite the perpetual injunction decree, they have, in

fact, been in possession of the schedule property. Basing on such

contention, the argument of learned counsel for petitioners is that the

question of disobedience, much less wilful disobedience does not

arise. In my view, this argument though apparently looks sound, UDPR,J

however, does not have legal scaffolding. The reasons are not far to

seek. It should be noted that both before the trial Court and the first

appellate Court, the contention of the present JDRs was similar that

they have been in peaceful possession and enjoyment and the plaintiff

is not. With reference to the oral and documentary evidence, both the

Courts below negatived the said contention and peremptorily held that

it was the plaintiff who was in lawful possession of the plaint schedule

property and decisively granted perpetual injunction decree. Of

course, the trial Court made an observation that the rights of the

defendants are concerned, they have to work out in a separate suit.

That observation by no means is an indicative that till the defendants

file a separate suit and vindicate their rights in respect of the subject

property, the decree in O.S.No.1 of 2000 would be kept in cold

storage. The purport of the said observation logically means the

defendants, if advised, can institute a suit of a suitable nature to

vindicate their alleged rights in the suit property and if they win in the

said comprehensive suit, they can get the suit property. Till such

time, the prohibitary injunction decree passed in O.S.No.1 of 2000

shall operate against the defendants and their men. This is the trite

law. Since in practice, it will take some time for such a suit to be

decided, the defendants may seek a suitable interlocutory order to

preserve their alleged possession before the Court where they

instituted the suit and the said Court, if convinced, may pass such an

interim order. Such laying of a suit and interlocutory application are

all different aspects and mere filing of such proceedings is not an

automatic guarantee of suspension of the decree and judgment in UDPR,J

O.S.No.1 of 2000. The JDRs/defendants, on the strength of the said

suit, cannot argue that they are in lawful possession of the suit

schedule property and they have not committed any disobedience of

the decree. Their contention itself amounts to wilful disobedience

because their alleged possession is not recognised by law, in view of

the decree and judgment in O.S.No.1 of 2000 being operational.

12. In V.S. Alwar Ayyangar Vs. Gurusamy Thevar6, the facts are

more or less similar. A perpetual injunction decree was passed

against the defendant. The plaintiff sought to execute the decree

complaining that despite the decree, the JDR was interfering with his

possession and thus wilfully disobeyed the Court's injunction and

prayed to commit the JDR to civil prison. The JDR in turn objected

the execution on the score that he was entitled to the possession of the

land. His case was that under Section 16A of the Tamilnadu

Agricultural Land Record of Tenancy Rights Act, 1969, the Record

Officer recorded the judgment debtor as a cultivating tenant of the suit

land which is sufficient to resist the execution of the decree. On the

other hand, the contention of the DHR was that after the perpetual

injunction decree was confirmed by the appellate Court, only

subsequently the JDR approached the Record Officer and obtained a

declaration that he was a cultivating tenant. Hence, the execution

Court cannot go behind the decree. It was observed that as against the

entries made by the Record Officer holding the JDR as cultivating

tenant, divergent proceedings including the writ proceedings were

MANU/TN/0301/1981=AIR 1981 Mad 354 UDPR,J

taken up by both parties and ultimately decree holder's appeal against

the latest order was pending in the appeal. Since that issue is still

pending, the High Court of Madras made the following observations:

" Paragraph 19 - It may be that in the fullness of time, with a final and conclusive order wholly in favour in the record of rights proceedings, the judgment debtor might not be left stranded without a suitable remedy to enable him to resume possession and proceed to exercise his rights as a cultivating tenant. But until that happens, and until he is helped by a competent decree or order to obtain possession, he is bound by the decree for injunction which is even now in force and which restrains him from for ever interfering possession. The wriggle out of an injunction of this kind and flourish in the court's face an entry in his favour in the record of tenancy rights. An insertion of that kind, by itself, cannot provide the judgment debtor with any excuse to take the law into his own hands, and enter possession of the decree holder's fields, violating the terms of the injunction. A court of law cannot sit still with folded hands and countenance its injunction being treated with indifference or scant courtesy by the party against whom it was directed and who is bound to obey its terms. This is particularly so, when, as it happened in this case, the decree for injunction had been confirmed in successive appeals, right up to this Court. Even the plea of nullity, based on Sec.16-A is now found on examination to be with the decree holder's judgment debtor cannot without substance. There can, therefore, be no defence whatever open to the judgment debtor against executing the decree for injunction in accordance with Or.21 R.32."

Further, with regard to the contention of the JDR that the DHR has not

placed any evidence that the JDR committed wilful disobedience of

the decree, the High Court observed that the JDR, by filing several

affidavits, saved DHR from producing such evidence because from

those affidavits, it was clear that the JDR asserted his possession and

in the teeth of such brazen assertions, he cannot claim that there was

no proof of wilful disobedience.

UDPR,J

13. Thus, from the above, two jurisprudential points would emerge.

The JDR's claim of possession in spite of the injunction decree is

itself a proof positive of wilful disobedience of the decree. Nextly, till

the JDR ultimately succeeds in his own proceedings, which is

subjudice, he has to oblige the injunction decree. If he ultimately

succeeds, he can seek for restitution.

14. Thus on a conspectus of facts and law, what surfaces is that the

execution Court was right in upholding the E.P. and dismissing the

stay application filed by the JDRs. In the normal circumstances, the

revision petitions are liable to be dismissed. However, considering

the fact that some of the JDRs are women and their detention in civil

prison cause much embarrassment to them and their family members,

this Court considers fit to give an opportunity to them to oblige the

decree.

15. Accordingly, these Civil Revision Petitions are disposed of with

a direction that the revision petitioners/JDRs 9 to 13 shall, within two

weeks from the date of this order, submit their sworn affidavits giving

an undertaking before the execution Court to the effect that until they

obtain an interim or final order upholding their lawful possession in

respect of the E.P. schedule property, they will not interfere with the

said property in any manner in future. On filing such affidavits and

being satisfied, the execution Court may close the proceedings in

E.P.No.22 of 2018 without committing the JDRs to civil prison.

However, on their failure to file the sworn affidavits as aforesaid, the UDPR,J

execution Court can continue the further proceedings in E.P.No.22 of

2018. There shall be no order as to costs.

As a sequel, interlocutory applications pending, if any, shall

stand closed.

_________________________ U.DURGA PRASAD RAO, J 3rd March, 2021 Note: LR copy be marked.

(b/o) cbs UDPR,J

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

CIVIL REVISION PETITION Nos.1224 and 2839 of 2019

Between:

Katuri Veerraju and others                    .. Petitioners

and

Taniki Satyanarayana and others               .. Respondents

DATE OF JUDGMENT PRONOUNCED: 03.03.2021


SUBMITTED FOR APPROVAL:

      THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO


1. Whether Reporters of Local newspapers       Yes/No
   may be allowed to see the Judgments?


2. Whether the copies of judgment may be       Yes/No
   marked to Law Reporters/Journals?


3. Whether Their Ladyship/Lordship wish to    Yes/No
  see the fair copy of the Judgment?




                                       U. DURGA PRASAD RAO, J
                                                                            UDPR,J

*THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO +Civil Revision Petition Nos.1224 and 2839 of 2019

%03-03-2021

+C.R.P.No.1224 of 2019

# Katuri Veerraju and others .. Petitioners

Vs.

$ Taniki Satyanarayana and others .. Respondents

+C.R.P.No.2839 of 2019

# Katuri Veerraju and others .. Petitioners

Vs.

$ Taniki Satyanarayana and others .. Respondents

<GIST:

>HEAD NOTE: