THE HON'BLE MR JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CIVIL REVISION PETITION No.4606 of 2010 And WRIT PETITION No.25854 of 2010 DT.26.08.2011 Between: C.R.P.No.4606 of 2010 Ibrahim s/o Shaik Ahmed and another … Petitioners And S.K.Wasim Ahmed s/o S.M.Saleem … Respondent Counsel for the Petitioner: T.Sujan Kumar Counsel for respondent: WRIT PETITION No.25854 of 2010 Ibrahim s/o Shaik Ahmed and another … Petitioners And State of Andhra Pradesh rep by its Principal Secretary to Government, Department of Home at Secretariat, Hyderabad & ors … Respondents Counsel for the Petitioner: T.Sujan Kumar Counsel for respondent: The Court made the following COMMON ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CIVIL REVISION PETITION No.4606 of 2010 And WRIT PETITION No.25854 of 2010 C O M M O N O R D E R:(Per Hon’ble Sri Justice V.Eswaraiah) The petitioners in the revision as well as the writ petition are the same, as such, both are being disposed of by a common order. 1. The revision is filed under Section 115 of the Code of Civil Procedure aggrieved by the docket order dated 25-9-2010 made in E.A.No.25 of 2010 in E.P.No.98 of 2007 in O.S.No.140 of 2006, on the file of the Junior Civil Judge, Bodhan. The petitioners herein filed the said E.A.No.25 of 2010 in E.P.No.98 of 2007 under Section 151 of the Code of Civil Procedure for their release till the disposal of some petition (it is not disclosed what is that petition). The said E.A was filed for the release of Judgment-debtor No.2, who is the 1st petitioner herein on the ground that the Court had not followed necessary procedure enjoined in Order 21 rule 40 C.P.C before sending him to civil prison, and no opportunity was given to contradict the statement of the decree-holder and the decree-holder required to be examined in the presence of the judgment-debtor. The said petition was dismissed by the impugned docket order dated 25-9-2010, which reads as follows: “Counter not filed even after considerable time, hence, this court proceeded further. Heard, gone through the entire petition and affidavit and entire records. This court find no merit in the petition for the reason that the contention taken by the learned counsel for the Judgment Debtor is mandatory in the proceedings of execution of a decree for the payment of money, but not for the execution proceedings in a suit for perpetual injunction. Hence, this court find no sufficient reason to consider the petition. Accordingly the petition is dismissed.” 2. The brief facts of the case as set in the revision and the lower Court records are as follows: The 1s respondent S.K.Wasim Ahmed filed the suit i.e., O.S.No.140 of 2006, on the file of the Junior Civil Judge, Bodhan against both the petitioners herein viz., Ibrahim and Kafiya Begum and also one Zaheeruddinseeking relief of perpetual injunction and the suit was decreed ex parte on 21-11-2006. On the ground that the ex parte injunction decree was disobeyed by the judgment-debtors i.e., Zaheeruddin, Ibrahim and Smt Kafiya Begum, the decree-holder/respondent herein filed E.P.No.98 of 2007 in the said suit i.e., O.S.No.140 of 2006 under Order 21 Rule 32 of the Code of Civil Procedure against them the judgment-debtors 2 and 3, the petitioners herein to send them to civil prison. It was the contention of the decree- holder/respondent No.1 that the decree was obtained by him against the judgment debtors restraining them from interfering with his possession over the suit schedule property and is proceeding with the construction of mulgis therein, but the judgment-debtors/petitioners disobeyed the decree passed by the Court by illegally trespassing into his plot and dismantling the sentry material therein and therefore sought to send the judgment-debtors 2 and 3/petitioners to the civil prison. 3. The decree-holder/respondent No.1 was examined as PW.1, who stated as pleaded by him that the judgment debtors 2 and 3 interfered with his possession over the suit schedule property and disobeying the orders of the Court by illegally trespassing and dismantling the sentry material therein. The decree-holder/respondent No.1 also examined one Taheeruddin as PW.2, who too supported the version of the decree-holder/respondent No.1 and as no rebuttal evidence to contradict the statements of the decree-holder and PW.2, the Court below allowed the said E.P and ordered for detention of the judgment-debtors 2 and 3/petitioners for one month, and issued warrant of arrest against the judgment-debtors 2 and 3/petitioners on payment of process by order dated 26-3-2008. The said order dated 26-3-2008 has not been questioned and it has become final. Though, the judgment debtors 2 and 3/petitioners have sought to question the said order also in the C.R.P, but the order dated 26-3-2008 is striked off. Thus, it is evident that the petitioners questioned only the decreetal order dated 25-9-2010, but not the E.P order dated 26-3-2010. Pursuant to the order passed in the E.P, the learned Junior Civil Judge issued warrant for sending the 1st petitioner herein viz., Ibrahim- judgment debtor No.2 to the civil prison for a period of not exceeding three months on the payment of monthly allowance for the subsistence of 2nd judgment-debtor/1st petitioner during his confinement under the warrant of committal by order dated 28-8-2010. 4. The learned counsel appearing for the petitioner has submitted that the E.P order dated 26-3-2006 for sending the Judgment-debtors 2 and 3/petitioners is only for one month, but the warrant has been issued for sending the judgment debtor No.2 to civil prison for a period not exceeding 3 months. He further submits that even the warrant of committal was also issued for one month, but somebody made a correction making one month as three months. 5. In view of the above, we are of the opinion that the petitioner ought to have questioned the said warrant of committal dated 28-8-2010 as the committal of judgment-debtor to civil prison cannot be more than one month that is contrary to the E.P order. Though the petitioner has not questioned that order, we are of the opinion that the warrant cannot be contrary to the E.P order. The scope of this revision is only with regard to the validity and illegality of the docket order dated 25-9-2010. The 1st petitioner has only sought for his release and as per the record as the petitioner already served the civil prison for a period of 45 day ie., more than one month and as the petitioner has not questioned the order in E.P, we are of the opinion that nothing survives in the revision. Accordingly, the revision is liable to be dismissed. 6. WRIT PETITION No.25854 of 2010 The petitioners, who are the judgment-debtors in O.S.No.140 of 2006 vide Judgment and Decree dated 21-11-2006, on the file of the Junior Civil Judge, Bodhan, who are stated to have been disobeyed the Judgment and Decree in the said suit and suffered an order to undergo civil imprisonment for a period of one month vide orders dated 26-3-2008 in E.P.No.98 of 2007 in O.S.No.140 of 2006, on the file of the Junior Civil judge, Bodhan, filed this Writ of Habeas Corpus to direct the respondents 1 to 4 to forthwith set the 1st petitioner at liberty by declaring Order 21 Rule 32 of the Code of Civil Procedure as violative of Articles 14, 20 (1) and 21 of the Constitution of India and also declare the docket order dated 25-9-2010 passed in E.A.No.25 of 2010 in E.P.No.98 of 2007 in O.S.No.140 of 2006, Committal order dated 28- 8-2010 passed in E.P.No.98 of 2007 in O.S.140 of 2006 and the order dated 26-3-2008 passed in O.S.No.140 of 2006, on the file of the 3rd respondent, the Court of the Junior Civil Judge, Bodhan, Nizamabad as illegal, arbitrary and unconstitutional. 7. The facts of the case in the writ petition are as follows: The 5th respondent herein viz., S.K.Wasim Ahmed filed the suit against one Zaheeruddin and the petitioners herein, who are the defendants 1 to 3 in O.S.No.140 of 2006, on the file of the Junior Civil Judge, Bodhan seeking the relief of perpetual injunction and the said suit was decreed ex parte on 21-11-2006, and it has become final. Thereafter, on the ground that it was disobeyed, the decree-holder, the 5th respondent herein filed E.P.98 of 2007 in O.S.No.140 of 2006 alleging that the judgment-debtors 2 and 3, the petitioners herein willfully violated the orders of perpetual injunction by interfering with his peaceful possession and construction of mulgis in the suit schedule property having illegally trespassed into and dismantled the sentry material therein. The learned Judge, after examining the decree holder as PW.1 and one Taheeruddin as PW.2, who also supported the version of the decree-holder (PW.2) and as there was no rebuttal evidence adduced by the judgment debtors, allowed the E.P ordering the detention of the judgment- debtors 2 and 3/petitioners for a period of one month on payment of process and consequently ordered to issue warrant of arrest against the judgment- debtors/petitioners by order dated 26-3-2006 wherein it is stated that the warrant of committal was issued for sending the judgment-debtor No.2, the 1st petitioner herein for civil prison for a period not exceeding three months. It is further stated that though the committal warrant was for one month, there was some manipulation and correction of the warrant making one month to three months and therefore, pursuant to the said committal order, the 1st petitioner had been detained in the Civil Prison for a period of 45 days, and in pursuance of the orders of this Court passed on 13-10-2010, he was released from jail on 18-10-2010. 8. The learned counsel appearing for the 5th respondent fairly admits that the committal warrant should not have been beyond the scope of the order passed in the E.P by the executing Court for the violation of injunction order ordering the detention of the judgment debtors 2 and 3/petitioners for a period of one month. We are therefore of the opinion that as the warrant of committal dated 28-8-2010 is beyond the scope of the order passed in E.P.98 of 2007, dated 26-8-2010, appropriate enquiry requires to be conducted against all the concerned, who are responsible for issuing the committal warrant for a detention of three months instead of one month against the Judgment Debtor No.2/Petitioner No.1. Therefore, we are further of the opinion that the papers may be placed before the appropriate administrative committee for taking appropriate action against the concerned. Accordingly, we modify the committal order of sending the petitioner Mr.Ibrahim to civil prison to the period not exceeding one month alone. We also keep it open for the Judgment-debtor 2/1st petitioner herein to file appropriate civil suit claiming damages against all the concerned, who are responsible for his detention in the civil prison for more than one month. 9. The learned counsel for the petitioner has sought to question order 21 Rule 32 as violative of Article 14, 20 (1) and 21 of the Constitution of India only on the ground that Order 21 Rule 32 does not prescribe the period of time for the detention of judgment-debtor, who violates an injunction order. He submits that if that provision is to be enforced the detention can be for one day or one year or even life. Further, according to him the detention of the 1st petitioner herein is much greater than the punishment liable to be inflicted reasonably or logically. Further in fact the period of detention for the violation of money decree under Section 58 C.P.C is only three months and hence for the violation of injunction order it cannot be more than three months. Therefore, Order 21 Rule 32 is in violation of Article 20 (1) of the Constitution of India. 10 Order 21 deals with the execution of various decrees and orders as enjoined in various rules there under. Order 21 rule 32 deals with the execution of decrees for specific performance, restitution of conjugal rights and injunctions. Order 21 Rule 32 (1) says that whoever violates the injunction are liable for their detention in the civil prison or attachment of his property or both. If there is violation of injunction decree, if any, and order of attachment of property is made or liable to be attached that attachment shall continue for a period of 6 months only so as to enable the decree holder to proceed against the attached property for its sale and recovery of the money. Order 21 Rule 32 only deals with the method of execution of decrees either by attaching the property of judgment debtor or by sending him to civil prison or both. Order 21 Rule 32 is only enabling provision to exercise the power by the executing courts. Order 21 Rule 37 deals with arrest and detention in the civil prison where an execution petition has been filed for payment of money under money decree for sending concerned judgment debtor to civil prison. The Court instead of issuing warrant of his arrest can also issue a notice calling upon him to appear before the Court as specified date in the notice and to show cause as to why he should not be committed to the civil prison, and if such judgment debtor fails to appear, warrant of arrest of the judgment debtor is to be issued. Order 21 Rule 38 states that every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs, if any, to which he is liable, be sooner paid. Order 21 Rule 39 (2) deals with the fixation of subsistence allowance by the Court as per the scales where a judgment debtor is committed to the civil prison in execution of money decree. But under Order 21 Rule 40 where the judgment debtor appears before the Court in obedience of the notice issued under Rule 37 or brought before the Court for being arrested in execution of the decree for payment of money, the Court shall proceed to in support of his application for execution show causing as to why he should not be committed to civil prison, pending enquiry under Order 21 Rule 40 (2) the Court may in its discretion order the judgment debtor to be detained in the custody of an officer of the Court or release him on furnishing a security for his appearance when required. Under order 21 Rule 40 (3) upon the conclusion of the enquiry under sub-rule (1) the Court may order detention of the judgment debtor in the civil prison subject to the provisions of Section 51 of the Civil Procedure Code. Section 51 says that any arrest or detention in the civil prison shall not exceed the period specifying in Section 58 where necessary detention is permissible under that section. Section 58 prescribes the period of detention in civil prison where the decree is for a payment of money exceeding Rs.5,000/- thousand period not exceeding three months, and where the decree is for payment of money exceeding Rs.500/- and not exceeding Rs.1,000/- for a period of not exceeding 6 weeks. Thus, the maximum period that is contemplated under Section 58 for sending the judgment-debtor to civil prison is not exceeding 3 months only in respect of the decree for payment of money exceeding 5,000/-. Order 21 Rule 40 proviso to sub-rule 3 provides that where the judgment debtor was brought before the Court pending enquiry, before making the order of detention, the Judgment-debtor can be left in the custody of an officer of the Court for a specified period not exceeding 15 days or release him on furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied. Under Order 21 Rule 40 (4) a judgment- debtor released under the said rule may be re-arrested for reasons to be recorded. 11. In view of the above, we are of the opinion that Sections 51 and 58 of the Civil Procedure Code prescribe only the maximum period of detention not exceeding 3 months. In fact, even for the breach of temporary injunction granted under Order 39 Rule 1 and 2, the person who is claiming such disobedience is liable to be put in civil prison only for a term not exceeding three months, whereas Order 21 Rule 32 is only the enabling provision to send the judgment-debtor to civil prison or to attach the property of the judgment-debtor where he disobeys the decree. Therefore, the detention of the judgment-debtor under Order 21 Rule 40 deals with the period of detention subject to the provision of Sections 51 and 58 C.P.C. Therefore, when Sections 51 and 58 provides that the maximum period of detention is 3 months only, it cannot be said that the order 21 Rule 32 is illegal and unconstitutional. Further, we are of the opinion that as order 21 Rule 32 is only enabling provision for sending the judgment debtor to the civil prison and the period of limit has been prescribed under Section 51, 58 read with order 21 Rule 40, and accordingly, Order 21 rule 32 is to be read together. Therefore, we do not see any merit in the contention that Order 21 Rule 32 is illegal, and unconstitutional. We are also of the opinion that the period prescribed under Section 51 and 58 read with Order 21 Rule 40 applies for all kinds of disobediences of injunctions, decrees and judgments. 12. For the foregoing reasons, the Civil Revision Petition and the Writ petition are accordingly dismissed. No costs. 13. Learned counsel for the petitioner has made an oral application across the Bar to grant certificate under Article 132 (1) of the Constitution of India. We are of the opinion that we do not see any substantial question of law as to the interpretation of the constitution. Therefore, we refuse the oral application. _______________ (V. ESWARAIAH,J) _________________________ (G.KRISHNA MOHAN REDDY,J) DATE:26-08-2011 grk THE HON'BLE MR JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY (The order of the Bench pronounced by Hon’ble Sri justice Eswaraiah) CIVIL REVISION PETITION No.4606 of 2010 And WRIT PETITION No.25854 of 2010 DATE:26-08-2011