Age :- Adult vs Age :- Adult Occ : Agriculturists
2011 Latest Caselaw 165 Bom

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    lgc
                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CIVIL APPELLATE JURISDICTION




                                                                                 
                              WRIT PETITION NO.3048 OF 2011




                                                         
          1    Shri Eknath Waman Jadhav                 ]
               Age :- Adult Occ : Agriculturists        ]
                                                        ]




                                                        
          2    Shri Jagannath Ganpat Jadhav             ]
               Age:- Adult Occ :- Agriculturists        ]
                                                        ]
          3    Shri Raghunath Damu Jadhav               ]




                                                  
               Age :- Adult, Occ:- Agriculturists       ]
                                  ig                    ]
               All R/o Maje Padali, Tal. Sinnar         ].... Petitioners
               Dist.Nashik                              ]    (Org.Defendants)
                                
                           versus

          1    Shri Namdeo Pandharinath Jadhav          ]
               Age :- Adult Occ : Agriculturists        ]
                

                                                        ]
          2    Shri Damodhar Pandharinath Jadhav        ]
             



               Age :- Adult Occ : Agriculturists        ]
                                                        ]
          3    Shri Dashrath Pandharinath Jadhav        ]
               Age :- Adult Occ : Agriculturists        ]





                                                        ]
          4    Smt.Velhubai Pandharinath Jadhav         ]
               Age :- Adult Occ : Agriculturists        ]..... Respondents
                                                        ]      (Org. Plaintiffs)
               All R/o Padali, Tal & Dist.Nashik        ]





          Mr. M M Sathaye for the Petitioners
          Ms.Pallavi N Dabholkar for the Respondents.


                                             CORAM :    R M SAVANT, JJ.

DATE : 05th December 2011

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ORAL JUDGMENT :

1 Rule, with the consent of the parties made returnable forthwith

and heard.

2 The above Petition takes exception to the Judgment and Order

dated 17/3/2011 by which the Executing Court by invoking the power under

Order 21 Rule 32 of the Code of Civil Procedure has committed the Petitioner

Nos. 1 to 3 to civil prison for three days on deposit of the subsistence

allowance by the Decree Holders.

3 The facts necessary to be cited for adjudication of the above

Petition can be stated thus :

The Petitioners, who are the original Defendants in Regular Civil

Suit No.210 of 1997, filed by the Respondents herein before the learned Civil

Judge, Junior Division at Sinnar. The suit was for injunction simplicitor in

respect of the land bearing Gat No.386 admeasuring 4 Hectres and 38 R

situated at Mauze Padali, Tal. Sinnar Dist. Nashik. The said injunction was

sought to the effect that the Defendants be restrained from disturbing

Plaintiffs' possession and enjoyment of the suit property. The Petitioners herein

as stated herein above are the Defendants and the Respondents herein are the

Plaintiffs to the said suit.

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    4              The   parties   went   to   trial   and   the   learned   Civil   Judge   Junior 

Division by the judgment and order dated 20/11/2003 decreed the said suit.

Aggrieved by the said judgment and decree dated 20/11/2003 the

Petitioners/Defendants filed First Appeal before the District Court. The said

First Appeal was numbered as Regular Civil Appeal No.350 of 2003. The said

Appeal came to be dismissed resulting in confirmation of the decree passed by

the trial Court. Being aggrieved by the dismissal of their First Appeal, the

Petitioners/Defendants have filed a Second Appeal in this Court being Second

Appeal No.881 of 2007. The said Second Appeal has been admitted on

23/1/2008 by a learned Single Judge of this Court. In the context of the

present Petition, the substantial questions of law framed therein would be

relevant and are reproduced herein under :-

(a) Whether the Courts below could have decreed the

Suit filed by the respondents though there was a finding recorded by the Trial Court in paragraph No.17 of the Judgment that a part of land bearing Gat No.386 was in possession of the appellants?

(b) Whether the Courts below could have passed a decree for perpetual injunction when a clear finding was recorded that the respondents-original plaintiffs were not in possession of a part of the suit property bearing Gat No.

386?

(c) Whether the Courts below and especially the Appellate Court have completely misconstrued and misinterpreted the evidence of the Surveyor examined by the appellants ?

5 It appears that in the Civil Application moved by the

Petitioners/Defendants in the said Second Appeal for interim relief, an order of

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status quo was passed on the same day i.e. on 23/1/2008. However, in view of

non-removal of office objections, the said civil application came to be dismissed

for non-prosecution resulting in the said status quo order being vacated.

6 It appears that at the time when the said civil application was

disposed of for non-prosecution, the application filed by the

Respondents/Decree Holders invoking Order 21 Rule 32 was pending. The

case of the Decree Holders i.e. the Respondents herein in the said Application

was that on 3/8/2007 the Plaintiff No.1 had gone for grazing of his cattle in

Gat No.386 on which occasion the Defendants dispersed the said cattle and did

not allow them to graze in the said land bearing Gat No.386. The said

Application was replied to by the Judgment Debtors i.e. the Petitioners herein.

It was their contention in their reply that the land bearing Gat No.386 and the

property of the Defendants i.e. Gat No.387 are adjacent properties and both

are used for grazing the cattle as the said lands are situated on the top of the

hill and that the forest land is adjacent to both these properties and that the

agriculturists in the said area are usually grazing their cattle in the said lands.

It was their contention that they had no reason to cause obstruction to the

Decree Holders and they cannot be imprisoned by having recourse to the Order

21, Rule 32 of the Code of Civil Procedure.

7 In so far as the said Application was concerned, the Executing

Court, as indicated above, by the impugned order dated 17/3/2011 has

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ordered issuance of arrest warrant under Order 21 Rule 38 of the Code of Civil

Procedure against the Judgment Debtor Nos. 1 to 3 i.e. the Petitioners herein

for committing them in civil prison for a period of three days on depositing

subsistence allowance. The Executing Court reached such a conclusion on the

basis of the fact that the Judgment Debtors did not adduce any evidence to

rebut the evidence adduced by the Decree Holders. The Executing Court held

that by adducing evidence, the Decree Holders have proved that the Judgment

Debtors have obstructed the Decree Holders in spite of the decree of injunction

being in their favour. The Executing Court has also observed in the impugned

order that the Second Appeal and the Civil Application filed by the Judgment

Debtors have been dismissed for non-prosecution. The Executing Court has

further observed that the Judgment Debtors have not placed on record any

material to show the pendency of appeal or any stay order, and therefore the

Executing Court deemed it fit to commit the Judgment Debtor Nos.1 to 3 to

civil prison.

    8               I have heard the learned counsel for the parties. 





    9               Shri   Sathaye,   the   learned   counsel   appearing   on   behalf   of   the 

Petitioners, submitted that in terms of the scheme of Order 21 Rule 32 of the

Code of Civil Procedure, it was required for the Executing Court to first arrive

at a conclusion that the Judgment Debtors had an opportunity to obey the

decree and had willfully failed to obey it. Without recording such a finding it

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was not open for the Executing Court to exercise the powers under Order 21

Rule 32 of the Code of Civil Procedure and that too for committing the

Judgment Debtor Nos. 1 to 3 to civil prison. The learned counsel for the

Petitioners would contend that the Executing Court has also not considered as

to whether the purpose would be served by attaching the property of the

Judgment Debtors. The learned counsel would contend that in terms of Sub-

Rule (5) of Rule 32 of Order 21 of the Code of Civil Procedure, in addition to

the process mentioned in the earlier Rules, it is open for the Executing Court to

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 costs 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. The learned counsel would therefore

contend that without the said course of action being followed, the Executing

Court has committed the Judgment Debtor Nos.1 to 3 to civil prison. The

learned counsel would further contend that the fact that the part of Gat No.386

is in possession of the Appellants/Petitioners has also been recorded by this

Court at the time of framing the substantial questions of law, which fact

according to the learned counsel for the Petitioners goes to the very root of the

matter. The learned counsel lastly contended that since the Decree Holders

themselves admitted that the cattle of the other agriculturists in the said area

also come to graze in the field in question, the charge against the Judgment

Debtor Nos.1 to 3 of having willfully disobeyed the order of injunction is not

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brought home.

10 Per contra, it is submitted by Ms.Dabholkar, the learned counsel

appearing on behalf of the Respondents that in the facts and circumstances of

the present case wherein the Executing Court has deemed it fit to commit the

Judgment Debtor Nos.1 to 3 to civil prison for breach of injunction order, the

exercise of writ jurisdiction by this Court under Article 227 of the Constitution

of India is not warranted. The learned counsel for the Respondents would

contend that since the issue is of breach of injunction and taking into

consideration the fact that the Judgment Debtors have not led any evidence to

rebut the case of the Decree Holders, the willful breach of decree of injunction

passed by the trial Court has been proved. The learned counsel would contend

that even if another view was possible, this Court should not interfere with the

impugned order in its writ jurisdiction under Article 227 of the Constitution of

India. The learned counsel placed reliance on the Judgment of the Apex Court

reported in (2001) 8 SCC 97 in the matter of Estralla Rubber v/s Dass Estate

(P) Ltd. in support of the said contention.

11 I have heard the learned counsel for the parties and I have

bestowed my anxious consideration to the submissions made by them.

12 It is required to be noted that the decree passed is one of

injunction restraining the Judgment Debtors from interfering with the

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possession of the Decree Holders, qua Gat No.386. In so far as the said Gat No.

386 is concerned, it is pertinent to note that the trial Court though has decreed

the suit had recorded a finding that a part of Gat No.386 is in possession of the

Judgment Debtors. This Court therefore whilst admitting the Second Appeal

has framed substantial questions law in the said context. Therefore, the fact

that the Judgment Debtors are in possession of part of Gat No.386, which is

the subject matter of the proceedings, cannot be lost sight of whilst arriving at

a conclusion, whether there was a willful breach of the injunction order.

13 In so far as the said Gat No.386 is concerned, it is required to

noted that it is the case of the Decree Holders themselves that the cattle of

other agriculturist in the area also come to graze in the said Gat No.386 as the

said land along with land bearing Gat No.387 are used for grazing the cattle

and that the forest land is adjacent to both these properties. It is in the said

context also that the challenge to the impugned order would have to be

considered. There is merit in the submission of the learned counsel appearing

for the Petitioners Shri Sathaye that without recording a finding in terms of

Order 21 Rule 32 of the Code of Civil Procedure, the trial Court has though it

fit to commit the Judgment Debtor Nos. 1 to 3 to civil prison. In my view,

having regard to the mandate of Order 21 Rule 32 (1) of the Code of Civil

Procedure, the trial Court was required to record a finding as to whether the

Defendants had an opportunity to obey the decree and have willfully failed to

obey the same. The Executing Court has mechanically accepted the case made

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out by the Decree Holders that Defendant No.1 stopped them from bringing

their cattle in Gat No.386 and the cattle were driven away in view of the fact

that no rebuttal evidence was adduced on their behalf.

14 In so far as Sub-Rule (5) of Rule 32 of Order 21 is concerned, as

indicated above, it mandates that the Executing Court may in lieu of or in

addition to any of the processes as mentioned in Sub-Rules 1 to 4 may 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. The impugned order discloses that none of this was done

and the Executing Court merely on the ground that the Judgment Debtors have

not adduced any evidence in rebuttal though it fit to commit the Judgment

Debtor Nos.1 to 3 to civil prison. The impugned order also discloses that the

Executing Court has proceeded on a wrong premise that the Second Appeal has

also been dismissed for non-prosecution as whilst admitting the Second Appeal

this Court made it conditional on the Appellants to file paper book within the

stipulated time which I am informed has been done, and therefore, the Appeal

stood admitted as on the day when the matter was decided by the Executing

Court.

15 The reliance placed by the learned counsel for the Petitioners on

the Judgment reported in 2005(Supp.) Bom C R 666 in the matter of Sanjay

Mahendra Pawar v/s Malegaon Municipal Corporation & Anr that it is

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obligatory on the Executing Court to record a finding that during period from

date of decree till date of passing impugned order the judgment debtor has

means to pay decretal amount or any substantial part therefor and yet

judgment debtor had either refused or neglected to pay the same would in my

view apply in equal force, in the facts and circumstances of the case though the

decree in question is one for perpetual injunction. The learned counsel for the

Petitioners also relied upon the judgment of Apex Court reported in AIR 1980

SC 470 in the matter of Jolly George Varghese v/s. Bank of Cochin which has

been referred to in Mahendra Pawar's case. In my view, therefore, the

impugned order requires interdiction at the hands of this Court in its writ

jurisdiction under Article 227 of the Constitution of India The impugned order

is therefore required to be quashed and set aside and is accordingly quashed

and set aside. Rule is accordingly made absolute in the aforesaid terms with no

order as to costs.

[R.M.SAVANT, J]