Imprisonment Of Judgment Debtor Drastic Step, Court Must Ascertain If Decree Was Wilfully Disobeyed : Supreme Court

The Supreme Court through its recent order, observed that imprisonment of a judgment debtor is a drastic step and to exercise such power, the Court must ensure that the judgment debtor wilfully disobeyed its order.“Imprisonment of a judgment-debtor is no doubt a drastic step and would prevent him from moving anywhere he likes, but once it is proved that he had wilfully and with impunity disobeyed an order of injunction, the court owes it to itself to make the judgment-debtor realise that it does not pay to defy a decree of a court. Failure to exercise this power in appropriate cases might verily undermine the respect for judicial institutions in the eyes of litigants.,” observed the Bench of Justices J.B. Pardiwala and R. Mahadevan.Reliance was placed on Order 21, Rule 32 of the CPC and the concerned portion reads as:“Where the party against whom a decree ................ 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 an injunction by his detention in the civil prison…”The court's power under Order 21, Rule 32 is no more than a procedural aid to the harried decree-holder, the Court said. However, before passing an order for detention, the Court must be satisfied that the judgment-debtor, in spite of having an opportunity to obey the decree, has wilfully disobeyed it. It added that the absence of such a finding is a serious infirmity vitiating the order."decree for injunction passed against a party could be enforced by his detention in a civil prison, if he has wilfully failed to obey such decree despite having had an opportunity of obeying itBut, the Court should not, according to the same sub-rule, make an order for detention of the person unless it is satisfied that that person has had an Opportunity of obeying the decree and yet has wilfully disobeyed it."Elaborating, the Court said that the person seeking execution of the decree for an injunction must be able to prove that the concerned person was not only bound but also aware of the decree. Further, the person had an opportunity of obeying such decree but has wilfully disobeyed the same.“Thus, the onus of placing materials before the executing Court for enabling it to record a finding that the person against whom the order of detention is sought, has had an opportunity of obeying the decree for injunction, but has wilfully disobeyed it, lies on the person seeking such order of detention, lest the person seeking deprivation of the liberty of another cannot do so without fully satisfying the Court about its need.,” the Court explained.In brief, the original plaintiffs (respondents' legal heirs) had filed a suit against the present appellants for recovery of possession and for a permanent injunction. The same suit was decreed in the plaintiff's favour. Pertinently, after almost 40 years, the respondents filed an execution case to execute this decree on the ground that the appellants herein were disturbing their peaceful enjoyment of the property.Since the appellants did not appear, the executing court fixed the matter for ex parte disposal. It also rejected the written objections filed by the appellant. Consequently, an order was passed that the appellants shall be arrested and detained in civil prison for 30 days and their property be attached as per the law. Challenging this, the appellants approached the High Court. However, the High Court rejected the plea and observed that no jurisdictional error was committed by the executing court in passing the impugned order. Thus, the present case.After perusing the submissions and the relevant provisions, the Court observed that an application seeking detention of the judgment-debtor must state or attach an affidavit mentioning the grounds for the same. Order 21, Rule 11-A of the CPC stipulates the same.“Stating of grounds or filing of affidavit is essential. The provision is thus mandatory and unless it is complied with, no arrest or detention of the judgment-debtor can be ordered. But if the requisite affidavit is not filed by the decree-holder, the court should afford an opportunity to him to file such affidavit. It is well settled that a decree of permanent injunction is executable with the aid of the provisions contained in Order XXI Rule 32 of the Code referred to above, and any act in violation or breach of decree of permanent injunction is a continuing disobedience entailing penal consequences.,” the Court said and placed its reliance on several cases discussing the scope of Order 21, Rule 32.Addressing the fact that the execution case was filed 40 years after the decree, the Court made it clear that the same can be enforced when the judgment debtor tries to disturb the peaceful possession. To support this, reference was made to the proviso to Section 136 of the Limitation Act. Therein, it is stated that the enforcement or execution of a decree granting a perpetual injunction ...

Imprisonment Of Judgment Debtor Drastic Step, Court Must Ascertain If Decree Was Wilfully Disobeyed : Supreme Court

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Imprisonment Of Judgment Debtor Drastic Step, Court Must Ascertain If Decree Was Wilfully Disobeyed : Supreme Court

Gyanvi Khanna

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