THE HON’BLE SRI JUSTICE SANJAY KUMAR C.R.P.No.6025 of 2006 Date: 24.06.2010 Between: Ganagalla Appa Rao and another … Petitioners AND Ganagalla Suramma … Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR C.R.P. No.6025 of 2006 ORDER: This Civil Revision Petition arises out of the order dated 01.11.2006 passed by the Principal Junior Civil Judge, Srikakulam in E.P.No.195 of 2005 in O.S.No.595 of 2003. By the said order, the executing Court committed judgment debtor No.1, the first petitioner herein, to civil prison for a period of one month exercising jurisdiction under Order XXI Rule 32 C.P.C. 2. The respondent herein filed the suit, O.S.No.595 of 2003, for perpetual injunction restraining the defendants in the suit from interfering with her peaceful possession and enjoyment of the plaint schedule property. The said suit was decreed on 04.04.2005. Complaining of violation of the injunction granted by the trial Court, the respondent filed E.P.No.195 of 2005 seeking the arrest of judgment debtor No.1. Before the executing Court, the respondent herein examined PWs.1 & 2 and marked a photocopy of the decree in O.S.No.595 of 2003 as Ex.P.1. The petitioners, being the respondents therein, examined two witnesses but did not adduce any documentary evidence. The second petitioner examined herself as RW.1. Judgment debtor No.1, the first petitioner herein, did not choose to enter into the witness box. The trial Court having found that the respondent herein had sought execution of the decree only against judgment debtor No.1 restricted the order to him alone. Extracting the sum and substance of the depositions of the various witnesses in its order and drawing an adverse inference against judgment debtor No.1 for not entering into the witness box, the executing Court stated that it had no hesitation to hold that judgment debtor No.1 had violated the order and in the result, committed him to civil prison for one month. 3. Sri T. Rajasekhar Rao, learned counsel for the petitioners, stated that the parties herein are related, inasmuch as the second petitioner is no other than the sister of the respondent while the first petitioner is the husband of the second petitioner. He submitted that both the sisters owned land in the same survey number and that there is no ‘wilful’ violation of the decree by the first petitioner warranting his arrest under Order XXI Rule 32 CPC. The learned counsel pointed out the executing Court did not state as to on what basis it came to the conclusion that there was wilful violation. The so-called adverse inference drawn by the Court owing to the failure of the first petitioner in entering the witness box was the only reason, and the learned counsel urged that the same would not be sufficient to constitute ‘wilful’ disobedience as contemplated by the provision. He placed reliance on case law in support of his contention. 4. Sri A. Rama Rao, learned counsel for the respondent, sought to justify the order of the executing Court on its merits. 5. Perusal of the order passed by the executing Court reveals that there is no consideration of the evidence by the executing Court on merits. Having extracted the substance of the depositions of the various witnesses and having drawn an adverse inference against judgment debtor No.1 for not entering into the witness box, the executing Court baldly stated that it had no hesitation to hold that judgment debtor No.1 had violated the order. There is not even a finding to the effect that judgment debtor No.1 had ‘wilfully’ disobeyed the injunction decree. 6. A bare reading of Order XXI Rule 32 (1) of the C.P.C. demonstrates that only a party who has wilfully failed to obey the decree of injunction is liable to be committed to detention in the civil prison. This Court in Mujeeb Ahmed Khan v. Sadar Anjuman-E. Islamia and another[1], relying upon the judgment of the Supreme Curt in State of Bihar v. Sonabati Kumari[2], held that the question as to whether a party had wilfully disobeyed the decree is a question of fact and must be decided on the facts of each particular case. It was further held that a decree for perpetual injunction can be executed only when the Court records a finding of wilful failure to obey the decree. Thus it is incumbent upon the executing Court to record a finding as to the ‘wilful’ disobedience of the decree of injunction before exercising jurisdiction under Order XXI Rule 32 C.P.C. Such exercise is absent in the present case. 7. Ergo, the order dated 01.11.2006 passed by the executing Court in E.P.No.195 of 2005 in O.S.No.595 of 2003 is unsustainable and is accordingly set aside. The matter is remanded to the executing Court for fresh consideration on the basis of the evidence already adduced to decide the issue and pass fresh orders in the light of the observation made herein and in accordance with the provisions of Order XXI Rule 32 C.P.C. 8. The Civil Revision Petition is allowed. No costs. __________________ SANJAY KUMAR, J Date: 24.06.2010 Isn [1] 2002 (1) An.W.R. 403 (A.P.) [2] AIR 1961 SC 221