{1} cra7810.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.78 OF 2010 Ramkishan s/o Nivrutti Shirure, age: 45 years, Occ: Agril., R/o Naigaon, Tq. Chakur, District Latur. Petitioner Versus 1 Sopanrao s/o Baburao @ Bhaurao Shirure, age: 76 years, Occ: Agril., R/o Nalegaon, Tq. Chakur, District Latur. 2 Dattatraya s/o Bhaurao Shirure, age: 69 years, Occ: Agril., R/o as above. Respondents 3 Vinayak s/o Dattatraya Shirure } Deleted as per Court’s order dated 24.03.2011. Mr.R.K.Ashtekar, advocate for the petitioner. Mr.S.S.Manale, advocate for respondent no.1. Respondent No.2 served. Respondent No.3 deleted as per Court’s order dated 24.03.2011. CORAM : R.M.BORDE, J. DATE : 01 st April, 2011 ORAL JUDGMENT: 1 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. {2} cra7810.odt 2 Petitioner – original judgment debtor no.3 is raising exception to the order dated 02.03.2010, passed by Civil Judge, Junior Division, Chakur, below Exhibit-1 in Regular Darkhast No. 10/2005. 3 Respondent No.1 herein presented a suit claiming decree of injunction against the petitioner – judgment debtor and other defendants in respect of cart way. It is not disputed that the judgment and decree passed by the trial Court has attained finality. It is alleged by the decree holder that original defendants have violated the decree of injunction and caused interference in the right of way conferred on the plaintiff. The application, seeking action against defendants, presented to the Executing Court under Order 21 Rule 11 of the Civil Procedure Code, was opposed by defendants no.1 and 2. Petitioner herein i.e. original defendant no. 3 remained absent and did not contest the application. The executing court found that judgment debtors no.1 and 2 i.e. original defendants no.1 and 2 have not committed any breach of order of injunction and as such exonerated them. However, as the judgment debtor no.3 – original defendant no.3 did not appear and contest the application, held him responsible for committing breach of injunction and as such, directed him to suffer simple imprisonment for one month on account of committing breach of the order. {3} cra7810.odt 4 Counsel appearing for petitioner - judgment debtor no.3 contends that the trial Court has recorded a finding that judgment debtor nos.1 and 2 have not violated the order. There is also no evidence placed on record that judgment debtor no.3 – petitioner herein, in any manner, has violated the decree and order of injunction passed by the trial Court. 5 In this view of the matter, merely because judgment debtor no.3 did not appear in the proceedings and contest the matter, it was an error on the part of the executing Court to held the judgment no.3 responsible for violating order of injunction and committing him to civil prison. 6 In the result, Civil Revision Application presented by judgment debtor no.3 – petitioner herein needs to be allowed and same is accordingly allowed. The order passed by Civil Judge, Junior Division, Chakur, below Exhibit-1 in Regular Darkhast No. 10/2005 is quashed and set aside. 7 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE JUDGE ******* adb/cra7810