AI Structured Summary
Not yet generated for this judgment
Judgment
A.H. Saikia, J.—Heard Miss R. Chakravorty, learned State counsel appearing on behalf of the petitioner No. 1 and 2 and Mr. H. Rahman, learned counsel appearing on behalf of petitioner No. 3 as well as Mr. N. Dhar, learned counsel appearing on behalf of private respondents.
This Revision petition has been carried from the order dated 15.5.1998 passed by the learned Civil Judge (Jr. Division) - 1, Karimganj in T. Execution Case No. 1/95 by which the petitioner No. 3 was made liable for punishment under Order 21, Rule 32(1) of the C.P.C. for wilful violation of the judgment and decree dated 8.1.1993 passed in T.S. No. 87/91 and consequently directing him to be detained in civil prison for 15 days.
Assailing the impugned order, Mr. Rahman, learned counsel for the petitioner No. 3, has advanced two fold argument-firstly, the impugned order is hit by principle of Res-judicata u/s 11 of the C.P.C. and secondly, order 21, Rule 32(1) is not meant for punishment for disobedience of the decree.
Harping on his first limb of argument, Mr. Rahman has submitted that the respondents, being the Decree-holder (for short D.H), after initiation of Execution Case being T. Execution No. 28/93 for execution of decree for declaration of title and for realization of costs and permanent injunction as well, preferred an application with the prayer to send the petitioner No. 3/Judgment Debtor (herein after referred to as J-D) to civil prison for wilful violation of the decree passed by the competent civil Court as already noticed above. The Executing Court by order dated 2.1.1995 refused to allow the prayer for execution of the permanent injunction as no prima-facie case was made out by the D-H and thereafter on the prayer of the D.H, the Execution Case was allowed to be withdrawn due to formal defect. But at the same time, by the said order itself, the Executing Court rejected the prayer for sending J.D to civil prison as prayed for. The operative part of the said order may be extracted as under :-
".......................................
The D.H. again submitted P/No. 2155/32 on 15.6,1994 and prayed to send the J.D. to civil Prison because the J.D.S. are disregarding the degree of the Court but the said prayer was rejected on hearing of both the parties in respect of P/No. 1753/42."
Mr. Rahman has contended that since the prayer for sending the J.D. petitioner No. 3 to civil prison had since been turned down by the Executing Court in T.Ex. Case No, 28/93 an mentioned above, the impugned order passed in the Second T. Execution Case being T. Ex. Case No. 1/95, being initiated on the petition No. 456/35 filed by the respondents/D-H under Order 21, Rule 32(1) C.P.C. by imposing the impugned punishment on the petitioner No. 3/J-D for his detention in civil prison for 15 days is directly hit by the principle of Res-judicata, it is urged that the issue relating to sending the J.D. to civil prison raised in the present T. Ex. Case had also been raised in the earlier T. Ex. Case, i.e., 28/93 and upon hearing the learned counsel for the parties, the learned Executing Court rejected the prayer therein. The issue now, being exactly similar in the instant case, cannot be decided in T. Ex. No. 28/93.
On his second limb of argument he has forcefully stated that the Order 21, Rule 32(1) C.P.C. is not meant for punishment as reflected in the impugned order itself by which the petitioner No. 3 was made liable for punishment under the said provision of the C.P.C.
It would be apposite to refer Rule 32(1) of the Order 21 C.P.C. and the same is extracted 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 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 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 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."
Accordingly to the learned counsel for the petitioner No. 3 this provision is only aimed at for enforcement of a decree of injunction by putting the person in civil prison. To substantiate his submission, Mr. Rahman has relied on a decision of Punjab & Haryana High Court reported in Smt. Dalip Kaur and Others Vs. Harbans Singh, wherein the said High Court observed that the proceedings under Rule 32 are not meant to punish the J-D for disobedience of the decree. In paragraph - 3 of the said cited case, it was held as follows :-
"3. So far as the judgment debtor is concerned he can be ordered to be detained in civil prison or his property attached, but that too can be done only for the enforcement of the decree. The land respecting which a decree for permanent injunction restraining the petitioner No. 1 from alienating it was passed, has since been sold. It is, therefore, not possible to enforce the decree either by attachment of the property of the judgment debtor or by detaining him in civil prison. The proceeding under Rule 32 are not meant to punish the judgment debtor for disobedience of the decree. If the judgment-debtor renders himself incapable of performing the decree, he may be liable to be proceeded against under the Contempt of Courts Act but no action under Rule 32 can be taken by way of punishment to the judgment-debtor."
Denouncing argument advanced on behalf of the petitioner No. 3, Mr. Dhar, learned counsel for the respondents has vehemently argued that the application of principle of Res-judicata in the present case does not arise at all because the essential ingredients required to attract the said principle are apparently found to be absent inasmuch as the rejection order dated 2.1.2005 itself as has already been noticed, atleast did not reflect that the matter was heard and finally decided by the former Executing Court and as such, the same cannot be said to be a decision on merit to attract Section 11 C.P.C. So far as the scope of Order 21, Rule 32(1) of the C.P.C. is concerned, this is the only provision available by which the respondents/D.H can seek redressal against such disobedience of the decree. There is no provision in the C.P.C. at their disposal to fall back upon to remedy such grievances of the respondents. This provision itself provides that any person who wilfully fails to obey a decree can be sent to detention in civil prison. It is also submitted that apart from putting the party in civil prison, the Court may also order for attachment of his property. In the instant case the Executing Court, having found the petitioner No. 3 liable for disobeying the decree wilfully, directed him to be detained for civil prison for 15 days and as such, there is no such illegality or jurisdictional error committed in passing the impugned order.
Reliance has been made by Mr. Dhar on the following judicial pronouncements :-
Firm Birohichand Badri Vishal and Others Vs. Firm Gangadhar Baijnath,
Ram Charan Sikdar Vs. Sm. Jogamaya Basu and Another,
Having gone through the cited cases, I am of the view that the proposition of law laid down in those decision is not applicable to the instant case.
Having given my anxious consideration to the rival contentions of the learned counsel for the parties and on close scrutiny of the impugned order and the related provisions of law, it appears that the impugned order is hit by the principle of Res-judicata. For the sake of convenience, I would like to refer Section 11 of the C.P.C. along with Explanation V thereto, being relevant herein, which reads as under :-
"11. Res-judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
........................................................................................................ ........................................................................................................
Explanation V-Any relief claimed in the plaints, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused."
In the backdrop of these provisions relating to the law of Res-judicata, in the case at hand, it is seen that in the original T. Ex. Case, the issue as regards sending the petitioner No. 3 to the civil prison was already raised and the learned counsel for the parties were heard on the said issue and upon hearing the learned counsel for the parties, the Court on being satisfied, rejected the prayer so made. Admittedly, against the said order dated 2.1.1995, the respondents had not moved the higher Court challenging the said rejection of the prayer for sending the petitioner to civil prison. The submission of Mr. Dhar to the effect that the matter was not "finally decided" being one of the requirements of the provisions of Section 11 of the C.P.C. cannot be accepted because the prayer for sending the petitioner to civil prison was rejected by the Court upon hearing the learned counsel for the parties. More so, assuming the relief claimed by the Respondents in their former petition in T. Ex. Case No. 28/93 was not expressly granted, then in terms of Explanation V to Section 11 C.P.C. as forequoted - the same shall be deemed to be refused for the purpose of application of the principle of res judicata in the present execution case.
Coming to the question as to whether the proceeding under Order 21, Rule 32(1) are meant for awarding punishment to the J-D for his wilful disobedience to the decree passed by the competent Court, from a bare perusal of the said section, it is seen that the said provision is very much clear and unambiguous. A party can be sent to civil prison not by way of punishment but only for the purpose of enforcement of the decree when the decree in question has been wilfully disobeyed by the J-D. Neither this provision can be substituted for contempt of Court not can it be used as an instrument to punish the J-D for this intentional violation of valid decree. Moreover, if a decree itself cannot be enforced, ther question of attachment of the property of the J-D or his detention in civil prison does not arise. Because the sole and limited purpose of attachment of the property of the J-D or his detention in civil prison as . provided under Order 21, Rule 32(1) C.P.C. is only to enforce the decree. Accordingly, applying the ratio in Dilip Kaur''s case (supra), it can be safely held that the proceedings under Order 21, Rule 32(1) of the C.P.C. are not aimed at to punish the J-D for disobedience of the decree by putting the person in detention in civil prison or by attachment of his property or by both.
That being the legal position, this Court is of the considered view that the impugned order deserves interference and consequently the same is quashed and set aside.
In the result, this Revision petition stands allowed. No costs.