1 CRA. No. 69.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION NO. 69 OF 2011 1. Prakash S/o Bala Dubele, Age 36 years, Occu. Agril., R/o Dahegaon, Tq. Kannad, Dist. Aurangabad. 2. Sandeep S/o Bala Dubele, Age 31 years, Occu. Agril., R/o Dahegaon, Tq. Kannad, Dist. Aurangabad. ..APPLICANTS. VERSUS Janabai W/o Subhash Dubele, Age 36 years, Occu. Agril., R/o Dahegaon, Tq. Kannad, Dist. Aurangabad. ..RESPONDENT ... Shri A.S. Bajaj , Advocate for applicants Shri A.B. Gaikwad, Advocate for respondent sole CORAM :- S.S. SHINDE, J. Judgment Reserved on:- 28th July, 2011 Judgment Pronounced on :- 3rd August, 2011 JUDGMENT: 2 CRA. No. 69.2011 Heard. Rule, Rule made returnable forthwith. Heard finally with the consent of the parties. 2. This Civil Revision Application is filed by the original plaintiff, challenging the Judgment and Order dated 14-03-2011, passed by the Jt. Civil Judge, Junior Division, Kannad, in Regular Darkhast No. 38 of 2004. 3. The respondent herein who is original plaintiff filed R.C.S. No. 33 of 2001 for relief of permanent injunction and declaration of partition deed as not binding on decree holder along with relief of declaration of ownership. The Trial Court decreed R.C.S. No. 33 of 2001, on 05-08-2002. The original defendant has filed Regular Civil Appeal No. 219 of 2002 before the Appellate Court. The Appellate Court dismissed the appeal, vide its order dated 29-011-2003, and confirm the decree passed by the Trial Court. There was another suit R.C.S. No. 117 of 2003, which was filed by original 3 CRA. No. 69.2011 defendant No. 2 against plaintiff, and same suit was also dismissed on 22-06-2006. Thereafter, Second Appeal was filed by the original defendants, and this Court did not entertain the Second Appeal, as the delay for filing Second Appeal was not condoned. For taking possession of suit property, the Original plaintiff has filed Regular Dharkhast No. 38 of 2004. The said Regular Dharkhast No. 38 of 2004 came to be allowed by the Jt. Civil Judge, Junior Division, Kannad. It is directed that the Original defendant No. 1 i.e. Prakash S/o Bala Dubele and original defendant No. 2 i.e. Sandeep S/o Bala Dubele be detained in civil prison for a period of one month. Being aggrieved by the same the original defendant Nos. 1 & 2 have filed this Civil Revision Application. 4. The learned counsel appearing for the applicant submit that the Executing Court failed to appreciate that the applicants have not deliberately and intentionally disobeyed the decree alleged to have been disobeyed by 4 CRA. No. 69.2011 the present applicants. It is further submitted that the applicants are illiterate and rustic villagers, and as such are not conversant with procedural aspect of law, which has to be followed in Court proceedings. It is further submitted that the provisions of Order XXI rule 32(1) of the Code of Civil Procedure has to be invoked in exceptional circumstances. Even if the applicants have disobeyed the decree, the provision of Order XXI rule 32(1) of the Code of Civil Procedure has provided remedy to attach and sale the property of Judgment Debtor. It is further submitted that the Executing Court, ought to have considered that without satisfying other modes of execution, the issue of warrant of arrest is not proper exercise of discretion on the part of the Executing Court. It is further submitted that the Executing Court failed to consider that, the respondent herein has failed to prove actual obstruction, but has based its finding holding that as the applicants are denying possession of the respondent herein, and as such it is to be presumed that the applicants are causing obstruction with possession, 5 CRA. No. 69.2011 hence committed breach of the decree. It is further submitted that the Executing Court ought to have considered that the liberty of a person cannot be taken away for mere unintentional negligence on his part. It is further submitted that the applicants herein were under impression that their Second Appeal is pending in this Court. It is further submitted that the applicants have filed undertaking before this Court and contended that they will hand over the possession of the land in question to the respondent, and accordingly, they have handed over the possession of the suit land. Therefore, the learned counsel appearing for the applicants, relying on grounds in Civil Revision Application, annexures there to would submit that this Civil Revision Application may be allowed. 5. On the other hand learned counsel appearing for the respondent, relying upon affidavit in reply filed on record, would submit that the land Gat No. 292, admeasuring 2 Hector 91 Are, was recorded in the name 6 CRA. No. 69.2011 of Prakash Bala Dubele. The said Prakas Bala Dubele sold 40 Are land from Gat No. 292, to the present respondent on 20-07-1998. In order to deprive the legitimate right of ownership and possession of the present respondent, the said Prakash Dubele executed partition deed of the entire land in favour of his brother i.e. Sandeep Dubele on 03-03-1999 i.e. after the sell of 40 Are land, in favour of the present respondent. The applicants Sandeep Dubele and Prakash Dubele conspired together and got mutated the land in favour of Sandeep Dubele by submitting partition deed before the revenue officer, and got sanctioned the mutation entry No. 1003 in favour of Sandeep Dubele. It is further submitted that there was disturbance, interference and hindrance in the peaceful possession of the respondent by the applicants herein. The respondent i.e. original plaintiff had filed R.C.S. No. 33 of 2001 before the Jt. Civil Judge, Junior Division, Kannad for perpetual injunction, declaration of ownership 7 CRA. No. 69.2011 and cancellation of sale deed, in respect of suit land. The Trial Court has decreed the suit on 05-02-2002 against the applicants, thereby declaring that the respondent herein is the owner of 40 Are land, out of land Gat No. 292, vide registered sale-deed dated 20-07-1998 i.e. Exhibit 47, and it is further declared that the partition deed dated 03-03-1999 i.e. Exhibit 48 is not binding on the present respondent. The Trial Court perpetually restrained the defendant from disturbing the peaceful possession of the deponent over 40 Are land, out of land Gat No. 292, situated at Village Wakad. 6. The applicants did file appeal bearing R.C.A. No. 219 of 2002, challenging the Judgment and Decree of the Trial Court, before the District Court, Aurangabad. The said appeal came to e dismissed on 19-11-2003. The applicant No. 1 i.e. Sandeep preferred Second Appeal (ST) No. 9403 of 2007 along with Civil Application No. 7157 of 2007 for condonation of delay of 260 days in filing the Second Appeal. This Court has dismissed the 8 CRA. No. 69.2011 Second Appeal. 7. It is the contention of the learned counsel appearing for the respondent that, inspite of dismissal of Second Appeal filed by the applicant No. 2 i.e. Sandeep, the applicants instead of handing over the possession of the land in question to the respondent continued illegal possession of the suit land, thereby deprive the decree holder from enjoying the fruits of the suit property, though the revision applicants were perpetually restrained from interfering in the possession of the respondent. 8. It is further submitted that during the pendency of the execution proceedings, the present respondent has filed application under Order XXI rule 32(1) of the Code of Civil Procedure , and the Trial Court has rightly passed the order on 14-03-2011, directing that the applicants be detained in civil prison. It is further submitted that the Regular Dharkhast No. 28 of 2004 is pending from last 7 to 8 years and the respondent is fighting the legal battle 9 CRA. No. 69.2011 against the applicants from last eleven years. The applicants were disturbing the peaceful possession and enjoyment of the deponent in clear disregard to the Judgment and Decree of the Trial Court as well as well as the Appellate Court, and this act of the applicants amounts to contempt of Court. It is further submitted that the contention of the applicants before this Court that they will hand over the possession of the suit land to the respondent is itself indicative fact that, in spite of dismissal of Second Appeal of the applicants, they are continued themselves illegally in possession of the suit land. Therefore, when the applicants themselves have admitted that they are in illegal possession of the suit land, the order impugned in this Civil Revision Application, directing the detention of the applicants does not suffer from any jurisdictional error, and therefore, this Court may not interfere in the impugned Judgment and Decree passed by the Jt. Civil Judge, Junior Division, Kannad. 10 CRA. No. 69.2011 9. I have given thoughtful consideration to the rival submissions, and also perused the grounds taken in Civil Revision Application annextures there to, and impugned Judgment and Order assailed in this Civil Revision Application, and also heard the respective counsel at length. Some undisputed facts in the present case are that R.C.S. No. 33 of 2001 was filed for relief of permanent injunction and declaration of partition deed as not binding on Decree Holder / present respondent along with relief of declaration of ownership. Said suit was decreed on 05-08-2002. The Judgment Debtor i.e. present applicants proceeded to challenge said decree before Appellate Court in Appeal bearing R.C.A. No. 219 of 2002, and the Appellate Court vide its order dated 29-11-2003, confirming decree passed by the Trial Court. There was another proceeding as R.C.S. No. 170 of 2003, which was filed by Sandeep Dubele against present respondent. Same suit was dismissed and appeal against the same also dismissed as R.C.A. No. 183 of 2005, vide its order dated 22-06-2006, and 11 CRA. No. 69.2011 Second Appeal against said decree was not entertained, as delay in filing the Second Appeal was not condoned by the High Court. 10. The provisions of Order XXI rule 32(1) of the Code of Civil Procedure reads thus :- “ Rule 32(1) :- 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 decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.” 11. The application which was filed by the respondent 12 CRA. No. 69.2011 herein, wad admittedly preferred under Order XXI rule 32(1) of the Code of Civil Procedure. The perusal of sub Section (1) of Rule 32 of Order XXI Code of Civil Procedure, would explicitly make it clear that where the party against whom a decree for specific performance of contract, or for restitution of conjugal rights, or for an injunction has been passed, had opportunity of obeying the decree and has willfully 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 specific performance of contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both. Therefore, on careful reading of sub Section (1) of Rule 32 of Order XXI Code of Civil Procedure make it abundantly clear that that the Court has jurisdiction to pass the order of detention in the civil prison, if the decree is for specific performance of contract, or for an injunction is not followed, in spite of having opportunity of obeying the decree, and Judgment Debtor has willfully failed to obey 13 CRA. No. 69.2011 it. 12. In the present case, in R.C.S. No. 33 of 2001 which was filed by the respondent herein, by Judgment and Order dated 5-08-2002, came to be allowed by the Jt. Civil Judge, Junior Division, Kannad. The order passed by the Jt. Civil Judge, Junior Division, Kannad in R.C.S. No. 33 of 2001 reads thus :- “ ORDER 1. Suit is hereby decreed with cost. 2. It is hereby declared that plaintiff is owner of 40 R land out of Gut No. 292 vide registred sale-deed dated 20-07-1998 Exh. 47 and partition deed dated 03-03-199 Exh. 48, is not binding on the plaintiff. 3. Defendants are hereby perpetually restrained from the disturbing peaceful possession of plaintiff over 40 R land out of Gut No. 292 of Village Wakad. Decree drawn up accordingly.” 13. Therefore, the competent Court declared that the 14 CRA. No. 69.2011 plaintiff is owner of 40 Are land, out of Gat No. 292, vide registered sale-deed dated 20-07-1998, Exh. 47 and partition deed dated 03-03-1999 Exh. 48 is not binding on the plaintiff. From reading clause three (3) of the order reproduced here-in-above, the applicants herein i.e. defendants in the said suit are perpetually restrained from the disturbing peaceful possession of the plaintiff over 40 Are land, out of Gut No. 292 of Village Wakad. The appeal filed by the applicants, challenging the said Judgment and Order in R.C.S. No. 33 of 2001, came to be dismissed, thereby confirming the decree passed by the Trial Court. There was another proceeding as R.C.S. No. 170 of 2003 which was filed by applicant No. 2 herein against the decree holder i.e. present respondent herein. The same suit was also dismissed, and appeal against it was also dismissed, and further Second Appeal against the said decree was not entertained by the High Court, as the application for condonation of delay, in filing the Second Appeal came to be rejected in the year 2007. Therefore, in my considered view, it was possible for the 15 CRA. No. 69.2011 applicants herein to obey the decree under execution. The execution proceeding is filed in the year 2004. There was sufficient and considerable time for the applicants herein to obey the decree passed by the competent Civil Court. However, it appears that the applicants remained in possession of the suit property illegally and thereby continued to disobey the Judgment and Order / Decree passed by the Jt. Civil Judge Junior Division, Kannad. Therefore, the Executing Court has rightly entertained the application filed by the original decree holders under Order XXI Rule 32 (1) of Civil Procedure Code, and after proper appreciation of the material placed on record, has exercised the jurisdiction vested, and therefore, in my view, there is no any jurisdictional error or the concerned Court has not exceeded its jurisdiction or while deciding the application filed by the decree holders under Order XXI rule 32(1) of the Code of Civil Procedure, has not recorded any perverse finding and has not committed any irregularities. The concerned Court had jurisdiction to entertain and 16 CRA. No. 69.2011 pass such orders, under Order XXI rule 32(1) of the Code of Civil Procedure. The admission of the applicants herein and under taking filed before this Court that they will hand over the possession of the suit property to the respondent, is clearly suggestive of the fact that, the applicants have illegally retained the possession of the suit property in spite of specific order / decree which has perpetually restrained them from disturbing peaceful possession of plaintiff over 40 Are land, out of Gut No. 292 of Village Wakad. The said decree is passed on 05-08-2002, and execution petition filed by the respondent is pending from 2004. The appeal which was filed by the applicants, challenging the decree came to be dismissed in the year 2003 itself. In other proceedings i.e. Second Appeal of the applicants was not entertained, since application for condonation of delay came to be rejected in the year 2007. Therefore, in my opinion, the applicants herein were under obligation to honor the decree passed by the competent Civil Court, in spite of having opportunity to them at least from dismissal of their 17 CRA. No. 69.2011 Second Appeal in the year 2007, they had sufficient and considerable time to honor the decree. However, they did not do so. Therefore, in my considered opinion, that the Judgment and Order impugned in this Civil Revision Application needs no interference in the revisional jurisdiction. The perusal of the impugned Judgment and Decree clearly show that the Executing Court has given elaborate reasons and relying on certain authoritative pronouncements of this Court, has reached to the correct conclusion. Therefore, the impugned Judgment and Order stands fully confirmed. The decree holder cannot be deprived for years together from enjoying fruits of the decree. Civil Revision Application is devoid of any merits same stands dismissed. Rule stands discharged. [ S.S. SHINDE, J. ] SDM* July-11