IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 32649 of 2009(O) ---------------------------------------- OS.869/2005 of I ADDL. MUNSIFF COURT, NEYYATTINKARA .................... PETITIONER(S): ------------------------ 1. LUKOSE, S/O.YOVU NADAR, AGED 55, LIJA BHAVAN, MULLIVAVUVILA, VELLARADA DESOM, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM. 2. LAWRENCE, S/O.DEVADASAN, AGED 55, PANAYAPPADI PUTHEN VEEDU, KUDAYAL.P.O, MULLALUVILA VELLARADA DESOM, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM. 3. VICTOR, S/O.LAWRENCE, AGED 25, MULLILAVUVILA, VELLARADA DESOM, KUNNATHUKAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. MR.R.GOPAN RESPONDENT(S): -------------------------- MRS.E. ELIZABETH, AGED 55, D/O.ABILI PUTHUVAL PUTHEN VEEDU, MULLILAVUVILA, VELLARADA DESOM, KUNNATHUKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. BY ADV. MR.G.S.REGHUNATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON 16/03/2010 DELIVERED THE FOLLOWING: WP(C) NO. 32649/2009-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S. NO.869/2005 OF THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 22/11/2005. EXT.P2: COPY OF THE E.P.NO.320/2007 IN O.S. NO.869/2005 OF THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 06/12/2007. EXT.P3: COPY OF THE COMMISSION APPLICATION DATED 06/12/2007 FILED BY THE RESPONDENT DATED 12/01/2009. EXT.P4: COPY OF THE OBJECTION FILED BY THE PETITIONERS IN E.P.NO.320/2007 IN O.S. NO.869/2005 OF THE 1ST ADDITIONAL MUNISFF COURT, NEYYATTINKARA DATED 08/07/2008. EXT.P5: COPY OF THE OBJECTION FILED BY THE PETITIONERS TO COMMISSION APPLICATION OF THE RESPONDENT DATED 08/07/2008. EXT.P6: COPY OF THE COMMISSION REPORT AND PLAN FILED BY THE ADVOCATE COMMISSIONER DATED 12/01/2009. EXT.P7: COPY OF THE DEPOSITION OF PW1. EXT.P8: COPY OF THE DEPOSITION OF PW2. EXT.P9: COPY OF THE DEPOSITION OF JDW1. EXT.P10: COPY OF THE DEPOSITION OF JDW2. EXT.P11: COPY OF THE DEPOSITION OF JDW3. EXT.P12: COPY OF THE ORDER DATED 04/11/2009 IN EP.320/2007 IN O.S.869/2005 OF THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE ORDER DATED 04/11/2009 ON E.P.NO.320/2007 IN O.S. NO.869/2005 OF THE ADDL. MUNSIFF-I, NEYYATTINKARA. //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 32649 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of March, 2010. JUDGMENT Petitioners are judgment debtors 1, 3 and 4 in O.S. 869 of 2005 on the file of the 1st Additional Munsiff's Court, Neyyattinkara. The suit was instituted by the respondent herein for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property, from demolishing the boundary of her property and also from widening the pathway encroaching into the plaint schedule property. It is alleged that on the southern side of the plaint schedule property, there is a three feet wide pathway. The allegation is that on 18.11.2005, the defendants attempted to trespass into the property after demolishing a portion of the barbed wire fencing on the southern side of the plaint schedule property for widening the pathway. The defendants resisted the suit WPC.32649/2009. 2 pointing out that the allegations were totally false and the idea was to usurp a portion of the pathway and annex it to her property. After trial the suit was decreed. 2. Accusing the petitioners of having violated the injunction order, the decree holder instituted E.P. 320 of 2007 in O.S. 869 of 2005. They were accused of having entered into the plaint schedule property after demolishing the barbed wire fencing on the southern side. Consequential reliefs were also sought for. A commission was taken out by the decree holder to report about the alleged violation. 3. The petitioners resisted the petition and pointed out that they had not done any act, which would constitute violation of the injunction order passed by the court. A copy of the objection so filed is produced as Ext.P4. The petitioners have also filed objections to the commission application and also to the commissioner's report. 4. The execution court took evidence in the matter. The petitioner examined P.Ws.1 and 2 and had Exts.A1 and A1(a) marked. Exts.C1 and C1(a) are the WPC.32649/2009. 3 Commission report and plan. The petitioners herein was examined as D.Ws. 1 to 3. On a consideration of the materials before it, the court below came to the conclusion that the allegations of violation of the order of injunction had been established and accordingly the E.P. was allowed as follows: “1. The judgment debtors 1, 3 and 4 are ordered to be detained in Civil Prison for 15 days for the violating decree. 2. The decree holder is allowed to restore the barbed wire fencing and boundary stones along BCDEF point in Ext.C1(a) plan as ascertained by the commissioner in Exts.A1 and A1(a) rough sketch and to realise the cost of the restoration from first, third and fourth judgment debtors.” The said order is assailed in this writ petition. 5. That there was a decree against the petitioners herein is a matter which cannot be disputed. The decree holder sought execution of the decree on the ground that the petitioners had wilfully disobeyed the decree and acted WPC.32649/2009. 4 contrary to the terms of the decree. The specific allegation was that they had destroyed the barbed wire fencing on the southern side and trespassed into a portion of the property. The court found that the allegations are true. 6. Learned counsel appearing for the petitioners contended that the court below was not justified in passing the impugned order. It is contended that the judgment debtors ought to have been given a chance to obey the decree and without doing so they should not have been sent to civil prison. It was also pointed out that the relief now granted by way of injunction is far beyond the scope of the decree. Another contention that is raised is that Order XXI Rule 32 is meant only to enforce injunction contained in the decree and cannot be taken aid as a punitive measure. Finally it is contended that the court below was not justified in awarding costs to the decree holder without an attachment of the property of the petitioners. 7. Learned counsel appearing for the respondents in this writ petition on the other hand pointed out that there WPC.32649/2009. 5 is no merit in any of the contentions raised by the learned counsel for the petitioners. It was pointed out that the E.P. was filed in 2007 specifying the nature of the acts committed by the petitioners herein. If they had an inclination to obey the decree, they could have done so. Final orders were passed in the E.P. only on 4.11.2009, that is after a lapse of nearly two years. According to counsel Order XXI Rule 32 enables the executing court on finding that there has been a violation of the decree, to order the persons, who were guilty of contumacious conduct, to be detained in civil prison or by attachment of their property or both. The court below has chosen to send them to civil prison. Order XXI Rule 32 also provides for award of costs and there is nothing wrong in having done so. It was also contended that there is no merit in the contention that the relief now granted exceeds the terms of the decree. According to learned counsel, it was deliberate wilful disobedient acts committed by the petitioners challenging the decree of the court and they deserve no sympathy. He WPC.32649/2009. 6 prayed for a dismissal of the petition. 8. Before going further into the matter, it is felt necessary to refer a few decisions cited by the learned counsel for the petitioner. In the decision reported in Keeran v. Mohanan (1980 KHC 10), it was observed that there has to be a finding by the execution court that the judgment debtor had wilfully disobeyed the decree. In the decision reported in Samuel v. Madhavan (1995 KHC 64), it was held as follows: “The above provisions would indicate that award of compensation is in the discretion of the court where there had been an attachment of the property of the judgment debtor and the decree holder applied for sale of the same during the period the attachment remained in force viz. six months. Where there was no attachment and sale under Sub-r.(3), award of compensation even as a measure of damages seems to be impermissible. In other words, outside the provisions of O.21 R.32(1) and (3), award of compensation for the loss sustained by the decree holder at the hands of the violator of the decree would be illegal. The WPC.32649/2009. 7 procedural requirements of the above rules will have to be satisfied to sustain the award of compensation. It is clear that the court below had failed to abide by the said provisions and granted the request made on behalf of the decree holder, who rested his claim on the report of the commissioner. The impugned order is clearly in excess of the jurisdiction of the court below, is illegal and is hence set aside.” Learned counsel also pointed out the following passage in the decision reported in Narayani v. Thankappan (1991(2) KLT 704): “Order 21 Rule 32 is not intended to punish a contumacious party. The said rule can be invoked only for enforcement of a decree. Detention in civil prison or attachment of property can be resorted to only so long as the decree stands unenforced. Once a decree has been enforced, or complied with the judgment debtor is not liable to be detained in prison and his property is not liable to be attached under Rule 32(1). During detention of a judgment debtor in civil prison for enforcement of a decree if it is reported that the decree has since been enforced the WPC.32649/2009. 8 judgment debtor is entitled to be released forthwith. For what took place in the past he cannot be retained in prison for any further period under Order 21 Rule 32. In violation or disobedience of a decree for injunction is sought to be visited with punitive consequences, the only remedy available in law, as matters stand at present, is to initiate proceedings under he law of Contempt of Courts against the person concerned. There is no other provision for imposing punishment for disobedience of a term or command contained in a decree for injunction, prohibitory or mandatory.” Learned counsel also relied on the decision reported in Rev. Fr. Paulose v. Shajahan (2009(3) KLT 394), wherein it was held that the execution court was incompetent to award damages and that was outside the scope of Order XXI Rule 32 CPC. 9. It is well established by now that the visitorial jurisdiction under Article 227 is to be sparingly exercised. The court exercises the power only in cases where there is an error in the exercise of jurisdiction or failure to exercise WPC.32649/2009. 9 jurisdiction and so the findings are so perverse that no reasonable man would enter such a finding. The mere fact that on a consideration of the entire records a different view may be possible is not a ground to interfere under Article 227. Scope of interference is considerably limited though self imposed. 10. Before going into the issues involved in this petition, it will be useful to refer to Order XXI Rule 32 and also about the scope of interference. Order XXI Rule 32 reads as follows: “32. Decree for specific performance for restitution of conjugal rights, or for an injunction.- (1)Where the party against whom a decree for the 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 a decree for the specific performance of a contract, or for an injunction by his detention in WPC.32649/2009. 10 the civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if the judgment debtor has not obeyed the decree and the decree holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment debtor on his application. (4) where the judgment debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of attachment, no application to have the property sold has been WPC.32649/2009. 11 made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not bee obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, 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, and upon the act being done the expense incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. Explanation.- For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.” 11. There can be no doubt regarding the relief that could be granted under Order XXI Rule 32 CPC. Order XXI Rule 32 (1) says that rule is made applicable to the provisions of the said rule in case of a decree for injunction also. It also provides for the reliefs to be granted in such WPC.32649/2009. 12 cases. It is specifically mentioned therein that if the court finds that there is a violation of the decree then, the court is empowered to order detention in civil prison or by attachment of property or by both. Therefore the claim that the violator of an order of injunction cannot be detained in civil prison is not sustainable at all. The court may either resort to detention in civil prison or attachment of his property or may take recourse to both the courses. The consequence of attachment and the continued violation are dealt with in subsequent sub rules. 12. It is true that the court has not entered a finding that the judgment debtor had an opportunity to obey the decree and has willfully failed to obey the same. There can be no quarrel about this proposition and the learned counsel for the petitioners is justified in his submission in this regard, but merely because there is no finding by itself is not a ground for interference. 13. Now one has to look at the evidence. WPC.32649/2009. 13 14. Before going into that question, it may be useful to refer to the decree that is sought to be executed. It reads as follows: “Defendants are hereby restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property. Constructing new road by taking portion of plaint schedule property and for destroying the boundaries of plaint schedule property and committing waste therein.” 15. The court below has analysed the evidence on record very carefully and has come to the conclusion that there has been a violation of the decree. As rightly pointed out by the learned counsel for the respondents the E.P. was filed in 2007 and it was disposed of only in November, 2009. The petitioners were therefore aware of the allegations made against them and they had an opportunity to obey the decree. They did not do so. The lower court obtained the commissioner's report and found that the violations alleged are true. The commission report clearly shows that there WPC.32649/2009. 14 was barbed wire fence on all sides of the plaint schedule property before the passing of the decree. Subsequently after the violation was alleged and the commissioner was sent again to report the then state of affairs. Exts.C1 and C1 (a) report and plan of the Commissioner show that the barbed wire fencing has been tampered with and removed to a certain portion on the southern side of the property. In fact the court below found that the southern boundary had been destroyed. The lower court also found that the evidence of P.Ws. 1 and 2 is sufficient to show that the objectionable acts have been committed by the petitioners herein. The defence of the petitioners was that they were not at the place when the alleged incident took place. If it is so, it is for them to prove that fact by adducing acceptable evidence when there is clear evidence to show that they had done the contumacious acts. 16. The contention based on the decision reported in Narayani v. Thankappan (1991(2) KLT 704) that for violation of injunction no relief can be granted is without any WPC.32649/2009. 15 basis. The said decision does not hold so. Moreover, Order XXI Rule 32 is very clear in this regard if one is to hold that a decree for injunction is violated, only contempt of proceedings can be initiated. That would be infact nullifying the very decree itself and leaving the decree holder in the lurch. It would mean that each time when there is violation of the injunction, the decree holder has to initiate contempt of court proceedings. That obviously cannot be the rule. Contempt of court proceedings may be a remedy available. But to say that that is the only remedy available in the case of violation of injunction is going too far in the light of the explicit provision contained in Order XXI Rule 32. Accepting the plea of the petitioners would mean that the court is powerless to prevent breach of actions, which it prohibited by the decree. In other words, it would mean that the court is not able to give effect to its decree. That cannot be the law. 17. This court in this proceedings need not undertake a meticulous analysis of the evidence in the case. WPC.32649/2009. 16 True, penal consequences follow on the basis of the findings by the court below. But in order to ensure that justice has been done, this court has perused the records including the evidence on record. There is clear evidence of P.Ws. 1 and 2 that it was the petitioners who had committed the objectionable acts. Of course certain minor inconsistencies are highlighted and it is contended that they are not trustworthy witnesses. Inconsistencies pointed out are too insignificant to be taken notice of. Moreover, the definite stand of the petitioners was that they were elsewhere or infact it was a plea of alibi. Except for the interested version of themselves, there is nothing to show that what they claimed is true. 18. There is nothing in the order to show that the court below has awarded damages to the decree holder. It has only permitted the decree holder to restore the fencing boundaries BCDEF in Ext.C1(a) plan ascertained by the Commissioner in Ext.A1 and Ext.A1(a) rough sketch and to realise the costs for doing so from the judgment debtors. WPC.32649/2009. 17 Such an order is permissible under Order XXI Rule 32 sub rule (5). 19. There is nothing to indicate that the relief granted in execution exceeds the decree. There was a prohibitory injunction against the petitioners from tampering and destroying the southern boundary and entering into the plaint schedule property so as to increase the width of the pathway by taking a portion of the plaint schedule property. The execution court found that in fact the southern boundary has been tampered with by the petitioners and therefore provided consequential reliefs to the decree holder. It could not be said that the relief enabling the decree holder to put up the fencing and realise costs from the petitioners is in excess of the decree granted to the decree holder. 20. It therefore follows that there is no merit in any of the contentions raised by the petitioners. But however, it is felt that the direction that first, third and fourth judgment debtors shall be detained in civil prison for WPC.32649/2009. 18 15 days is certainly excessive than what is warranted in the facts and circumstances of the case. It is felt that detention in civil prison for a period of seven days would be sufficient. Therefore, this writ petition is disposed of modifying the order of detention of judgment debtors 1, 3 and 4 for a period of 15 days to 7 days and confirming the rest of the order of the court below. P. BHAVADASAN, JUDGE sb.