1 wp-3048.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3048 OF 2011 1 Shri Eknath Waman Jadhav ] Age :- Adult Occ : Agriculturists ] ] 2 Shri Jagannath Ganpat Jadhav ] Age:- Adult Occ :- Agriculturists ] ] 3 Shri Raghunath Damu Jadhav ] Age :- Adult, Occ:- Agriculturists ] ] All R/o Maje Padali, Tal. Sinnar ].... Petitioners Dist.Nashik ] (Org.Defendants) versus 1 Shri Namdeo Pandharinath Jadhav ] Age :- Adult Occ : Agriculturists ] ] 2 Shri Damodhar Pandharinath Jadhav ] Age :- Adult Occ : Agriculturists ] ] 3 Shri Dashrath Pandharinath Jadhav ] Age :- Adult Occ : Agriculturists ] ] 4 Smt.Velhubai Pandharinath Jadhav ] Age :- Adult Occ : Agriculturists ]..... Respondents ] (Org. Plaintiffs) All R/o Padali, Tal & Dist.Nashik ] Mr. M M Sathaye for the Petitioners Ms.Pallavi N Dabholkar for the Respondents. CORAM : R M SAVANT, JJ. DATE : 05th December 2011 2 wp-3048.11.sxw ORAL JUDGMENT : 1 Rule, with the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the Judgment and Order dated 17/3/2011 by which the Executing Court by invoking the power under Order 21 Rule 32 of the Code of Civil Procedure has committed the Petitioner Nos. 1 to 3 to civil prison for three days on deposit of the subsistence allowance by the Decree Holders. 3 The facts necessary to be cited for adjudication of the above Petition can be stated thus : The Petitioners, who are the original Defendants in Regular Civil Suit No.210 of 1997, filed by the Respondents herein before the learned Civil Judge, Junior Division at Sinnar. The suit was for injunction simplicitor in respect of the land bearing Gat No.386 admeasuring 4 Hectres and 38 R situated at Mauze Padali, Tal. Sinnar Dist. Nashik. The said injunction was sought to the effect that the Defendants be restrained from disturbing Plaintiffs’ possession and enjoyment of the suit property. The Petitioners herein as stated herein above are the Defendants and the Respondents herein are the Plaintiffs to the said suit. 3 wp-3048.11.sxw 4 The parties went to trial and the learned Civil Judge Junior Division by the judgment and order dated 20/11/2003 decreed the said suit. Aggrieved by the said judgment and decree dated 20/11/2003 the Petitioners/Defendants filed First Appeal before the District Court. The said First Appeal was numbered as Regular Civil Appeal No.350 of 2003. The said Appeal came to be dismissed resulting in confirmation of the decree passed by the trial Court. Being aggrieved by the dismissal of their First Appeal, the Petitioners/Defendants have filed a Second Appeal in this Court being Second Appeal No.881 of 2007. The said Second Appeal has been admitted on 23/1/2008 by a learned Single Judge of this Court. In the context of the present Petition, the substantial questions of law framed therein would be relevant and are reproduced herein under :- (a) Whether the Courts below could have decreed the Suit filed by the respondents though there was a finding recorded by the Trial Court in paragraph No.17 of the Judgment that a part of land bearing Gat No.386 was in possession of the appellants? (b) Whether the Courts below could have passed a decree for perpetual injunction when a clear finding was recorded that the respondents-original plaintiffs were not in possession of a part of the suit property bearing Gat No. 386? (c) Whether the Courts below and especially the Appellate Court have completely misconstrued and misinterpreted the evidence of the Surveyor examined by the appellants ? 5 It appears that in the Civil Application moved by the Petitioners/Defendants in the said Second Appeal for interim relief, an order of 4 wp-3048.11.sxw status quo was passed on the same day i.e. on 23/1/2008. However, in view of non-removal of office objections, the said civil application came to be dismissed for non-prosecution resulting in the said status quo order being vacated. 6 It appears that at the time when the said civil application was disposed of for non-prosecution, the application filed by the Respondents/Decree Holders invoking Order 21 Rule 32 was pending. The case of the Decree Holders i.e. the Respondents herein in the said Application was that on 3/8/2007 the Plaintiff No.1 had gone for grazing of his cattle in Gat No.386 on which occasion the Defendants dispersed the said cattle and did not allow them to graze in the said land bearing Gat No.386. The said Application was replied to by the Judgment Debtors i.e. the Petitioners herein. It was their contention in their reply that the land bearing Gat No.386 and the property of the Defendants i.e. Gat No.387 are adjacent properties and both are used for grazing the cattle as the said lands are situated on the top of the hill and that the forest land is adjacent to both these properties and that the agriculturists in the said area are usually grazing their cattle in the said lands. It was their contention that they had no reason to cause obstruction to the Decree Holders and they cannot be imprisoned by having recourse to the Order 21, Rule 32 of the Code of Civil Procedure. 7 In so far as the said Application was concerned, the Executing Court, as indicated above, by the impugned order dated 17/3/2011 has 5 wp-3048.11.sxw ordered issuance of arrest warrant under Order 21 Rule 38 of the Code of Civil Procedure against the Judgment Debtor Nos. 1 to 3 i.e. the Petitioners herein for committing them in civil prison for a period of three days on depositing subsistence allowance. The Executing Court reached such a conclusion on the basis of the fact that the Judgment Debtors did not adduce any evidence to rebut the evidence adduced by the Decree Holders. The Executing Court held that by adducing evidence, the Decree Holders have proved that the Judgment Debtors have obstructed the Decree Holders in spite of the decree of injunction being in their favour. The Executing Court has also observed in the impugned order that the Second Appeal and the Civil Application filed by the Judgment Debtors have been dismissed for non-prosecution. The Executing Court has further observed that the Judgment Debtors have not placed on record any material to show the pendency of appeal or any stay order, and therefore the Executing Court deemed it fit to commit the Judgment Debtor Nos.1 to 3 to civil prison. 8 I have heard the learned counsel for the parties. 9 Shri Sathaye, the learned counsel appearing on behalf of the Petitioners, submitted that in terms of the scheme of Order 21 Rule 32 of the Code of Civil Procedure, it was required for the Executing Court to first arrive at a conclusion that the Judgment Debtors had an opportunity to obey the decree and had willfully failed to obey it. Without recording such a finding it 6 wp-3048.11.sxw was not open for the Executing Court to exercise the powers under Order 21 Rule 32 of the Code of Civil Procedure and that too for committing the Judgment Debtor Nos. 1 to 3 to civil prison. The learned counsel for the Petitioners would contend that the Executing Court has also not considered as to whether the purpose would be served by attaching the property of the Judgment Debtors. The learned counsel would contend that in terms of Sub- Rule (5) of Rule 32 of Order 21 of the Code of Civil Procedure, in addition to the process mentioned in the earlier Rules, it is open for the Executing Court to 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 costs of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. The learned counsel would therefore contend that without the said course of action being followed, the Executing Court has committed the Judgment Debtor Nos.1 to 3 to civil prison. The learned counsel would further contend that the fact that the part of Gat No.386 is in possession of the Appellants/Petitioners has also been recorded by this Court at the time of framing the substantial questions of law, which fact according to the learned counsel for the Petitioners goes to the very root of the matter. The learned counsel lastly contended that since the Decree Holders themselves admitted that the cattle of the other agriculturists in the said area also come to graze in the field in question, the charge against the Judgment Debtor Nos.1 to 3 of having willfully disobeyed the order of injunction is not 7 wp-3048.11.sxw brought home. 10 Per contra, it is submitted by Ms.Dabholkar, the learned counsel appearing on behalf of the Respondents that in the facts and circumstances of the present case wherein the Executing Court has deemed it fit to commit the Judgment Debtor Nos.1 to 3 to civil prison for breach of injunction order, the exercise of writ jurisdiction by this Court under Article 227 of the Constitution of India is not warranted. The learned counsel for the Respondents would contend that since the issue is of breach of injunction and taking into consideration the fact that the Judgment Debtors have not led any evidence to rebut the case of the Decree Holders, the willful breach of decree of injunction passed by the trial Court has been proved. The learned counsel would contend that even if another view was possible, this Court should not interfere with the impugned order in its writ jurisdiction under Article 227 of the Constitution of India. The learned counsel placed reliance on the Judgment of the Apex Court reported in (2001) 8 SCC 97 in the matter of Estralla Rubber v/s Dass Estate (P) Ltd. in support of the said contention. 11 I have heard the learned counsel for the parties and I have bestowed my anxious consideration to the submissions made by them. 12 It is required to be noted that the decree passed is one of injunction restraining the Judgment Debtors from interfering with the 8 wp-3048.11.sxw possession of the Decree Holders, qua Gat No.386. In so far as the said Gat No. 386 is concerned, it is pertinent to note that the trial Court though has decreed the suit had recorded a finding that a part of Gat No.386 is in possession of the Judgment Debtors. This Court therefore whilst admitting the Second Appeal has framed substantial questions law in the said context. Therefore, the fact that the Judgment Debtors are in possession of part of Gat No.386, which is the subject matter of the proceedings, cannot be lost sight of whilst arriving at a conclusion, whether there was a willful breach of the injunction order. 13 In so far as the said Gat No.386 is concerned, it is required to noted that it is the case of the Decree Holders themselves that the cattle of other agriculturist in the area also come to graze in the said Gat No.386 as the said land along with land bearing Gat No.387 are used for grazing the cattle and that the forest land is adjacent to both these properties. It is in the said context also that the challenge to the impugned order would have to be considered. There is merit in the submission of the learned counsel appearing for the Petitioners Shri Sathaye that without recording a finding in terms of Order 21 Rule 32 of the Code of Civil Procedure, the trial Court has though it fit to commit the Judgment Debtor Nos. 1 to 3 to civil prison. In my view, having regard to the mandate of Order 21 Rule 32 (1) of the Code of Civil Procedure, the trial Court was required to record a finding as to whether the Defendants had an opportunity to obey the decree and have willfully failed to obey the same. The Executing Court has mechanically accepted the case made 9 wp-3048.11.sxw out by the Decree Holders that Defendant No.1 stopped them from bringing their cattle in Gat No.386 and the cattle were driven away in view of the fact that no rebuttal evidence was adduced on their behalf. 14 In so far as Sub-Rule (5) of Rule 32 of Order 21 is concerned, as indicated above, it mandates that the Executing Court may in lieu of or in addition to any of the processes as mentioned in Sub-Rules 1 to 4 may 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. The impugned order discloses that none of this was done and the Executing Court merely on the ground that the Judgment Debtors have not adduced any evidence in rebuttal though it fit to commit the Judgment Debtor Nos.1 to 3 to civil prison. The impugned order also discloses that the Executing Court has proceeded on a wrong premise that the Second Appeal has also been dismissed for non-prosecution as whilst admitting the Second Appeal this Court made it conditional on the Appellants to file paper book within the stipulated time which I am informed has been done, and therefore, the Appeal stood admitted as on the day when the matter was decided by the Executing Court. 15 The reliance placed by the learned counsel for the Petitioners on the Judgment reported in 2005(Supp.) Bom C R 666 in the matter of Sanjay Mahendra Pawar v/s Malegaon Municipal Corporation & Anr that it is 10 wp-3048.11.sxw obligatory on the Executing Court to record a finding that during period from date of decree till date of passing impugned order the judgment debtor has means to pay decretal amount or any substantial part therefor and yet judgment debtor had either refused or neglected to pay the same would in my view apply in equal force, in the facts and circumstances of the case though the decree in question is one for perpetual injunction. The learned counsel for the Petitioners also relied upon the judgment of Apex Court reported in AIR 1980 SC 470 in the matter of Jolly George Varghese v/s. Bank of Cochin which has been referred to in Mahendra Pawar’s case. In my view, therefore, the impugned order requires interdiction at the hands of this Court in its writ jurisdiction under Article 227 of the Constitution of India The impugned order is therefore required to be quashed and set aside and is accordingly quashed and set aside. Rule is accordingly made absolute in the aforesaid terms with no order as to costs. [R.M.SAVANT, J]