Judgment Debtor Can't Be Sent To Civil Prison For Wilful Disobedience Of Decree Without Notice Or Hearing: Bombay High Court

The Bombay High Court recently quashed and set aside an order passed by a Civil Court in Nanded, which imposed a punishment of one month civil prison on four members of a family for failing to abide by a decree passed against them.

Sitting at Aurangabad, single-judge Justice Siddheshwar Thombre quashed and set aside an order passed on April 18, 2023 against Purbha and Damu Dhutde and their cousins - Bhagwan and Suman Dhutde.

The Dhutde cousins had a long-drawn civil dispute with one Mohd Jafar Shaikh Ismail and his family, since 2002. However, a Civil Court passed the decree in favour of the Ismail family and against the Dhutde cousins on May 25, 2004. However, when the latter failed to adhere to the decree, the Ismail family, highlighted the said fact before the Executing Court.

The Executing Court, after noting the non-compliance on part of the Dhutde cousins, passed an order on April 18, 2023 directing them to be detained in a civil prison for a period of one month.

Challenging the said order, the Dhutde cousins pointed out that the Executing Court failed to adhere to the principles of natural justice as it did not issue any notice intimating them about such proceedings initiated against them at the behest of the Ismail family.

The Ismail family however, pointed out that despite the decree passed in May 2004, the Dhutde cousins wilfully failed to adhere to the same and thus, there was a wilful and deliberate disobedience of the court orders.

Justice Thombre, however, agreed with the Dhutde cousins, stating that the Executing Court should have first issued a notice to them before passing such a stringent order.

"I find that the executing Court passed the impugned order without issuing notice or affording any opportunity of hearing to the judgment debtor. Such an order, which entails deprivation of personal liberty, is in clear violation of the principles of natural justice. Even assuming that a breach of the decree was noticed, the executing Court was expected to issue notice to the concerned judgment debtor and call for an explanation before ordering detention in civil prison. Failure to follow this mandatory requirement renders the impugned order unsustainable. Therefore, I am inclined to allow the petition," the judge said in the order passed on January 23.

With this, the bench quashed and set aside the April 2023 order and issued a directive to the Executing Court to decide the Execution Proceedings initiated by the Ismail family, afresh and in accordance with law.

Appearance:

Advocate Manjiri Kulkarni appeared for Petitioners.

Advocate CC Deshpande represented the Respondents.

Case Title: Purbha Tulsa @ Tulsiram Dhutde vs Mohd Jafar Shaikh Ismail (Writ Petition 5563 of 2023)

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