IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: AT HYDERABAD FRIDAY, THE FIFTEENTH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.5210 of 2008 Between: Jagdish Temple through its Trustee, Sri Pusaram Maniyar, Warangal. …Petitioner A n d Vijay Singh and 3 others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.5210 OF 2008 ORDER: This civil revision petition is directed against the order dated 05-08-2008 in E.A.No.323 of 2008 in E.P.No.478 of 2006 in O.S.No.489 of 1993, on the file of the II-Additional Junior Civil Judge, Warangal, wherein the said application filed under Order XIX Rule 2 read with Section 151 CPC seeking to summon the deponent of the affidavit dated 10-06-2006, sworn on behalf of the decree holder for the purpose of cross-examination, was allowed. 2. Heard the learned counsel for the petitioner. None appeared for the respondent though served with notices. Perused the record. 3. The petitioner herein, decree holder, filed E.P.No.478 of 2006 against the 2nd respondent/judgment debtor No.2 and others under Order XXI Rule 11(2) CPC seeking arrest and detention of judgment debtor in civil prison alleging that he violated the decree for permanent injunction granted in O.S.No.489 of 1993 and confirmed in appeal in A.S.No.91 of 1999. The petitioner herein filed the suit for permanent injunction and the same was decreed and the appeal preferred against the same was also dismissed and the second appeal S.A.No.1370 of 2003 filed by the 2nd respondent herein-judgment debtor was also dismissed by this Court on 24-08-2005, holding that the decree holder established its possession over the suit schedule property and made out a case for grant of perpetual injunction. In the E.P., the decree holder filed a sworn affidavit dated 10-06-2006, wherein it is alleged that judgment debtor No.2 dishonoured the decree dated 28-07-1999. The 2nd judgment debtor filed E.A.No.323 of 2008 under Order XIX Rule 19(2) and Section 151 CPC for summoning the deponent, who filed affidavit on behalf of the decree holder temple, for cross-examination. The decree holder filed counter opposing the said application. The execution Court allowed the said petition holding that it is just and necessary to give an opportunity to the judgment debtor to cross-examine the deponent of the affidavit filed on behalf of the decree holder by name Pusaram Maniyar. Aggrieved by the same, the decree holder filed the present civil revision petition. 4. The learned counsel for the petitioner would contend that when judgment debtor No.2 was produced in execution of the arrest warrant, he gave an undertaking that he will not interfere with the EP schedule property and he did not file any counter and when the matter came up for enquiry, both parties reported no oral evidence and subsequently the judgment debtor filed the present application which is not maintainable. A copy of the memo dated 13-03-2007 filed by the judgment debtor before the execution Court would show that he stated therein that he would not disobey the orders of the Court and he undertook to appear before the Court as and when directed for enquiry and that he would not interfere with the suit schedule property without prejudice to his rights. The said memo does not contain any admission on the part of judgment debtor to the effect that he committed any act of breach or violation of the order of injunction. What all judgment debtor stated in the said memo is that he would not disobey the order of the Court and he would undertake to appear as and when directed by the Court and he would not interfere with the suit schedule property. The memo also shows that it was filed without prejudice to his rights. Simply because such a memo is filed, the judgment debtor cannot be denied right of cross- examination of the deponent who filed affidavit on behalf of the decree holder temple. The decree holder filed an execution petition under Order XXI Rule 11 CPC seeking arrest and detention of the judgment debtor in civil prison alleging that judgment debtor No.2 disobeyed the decree and also for removal of the structures. The impugned order shows that when judgment debtor No.2 was produced in execution of the warrant and after his undertaking that he would not interfere with the schedule property, the matter was posted for hearing regarding removal of structures as sought by the decree holder. A copy of the docket proceedings in the execution petition also disclose that on 13-03-2007 the judgment debtor was produced and he was a paralytic patient and he filed an undertaking that he will not interfere with the decree schedule property and arguments were heard regarding dismantling of sheds in the schedule property and the matter was posted for orders on 21-03-2007. On 11-04-2007, the matter was suo motu reopened and posted for further hearing. On 27-06-2007, as seen from the docket proceedings, the counsel for the judgment debtor reported that the claim of the decree holder is outside the purview of the decree. Thereafter, the matter underwent several adjournments. On 27-06-2008, no oral evidence was reported by the decree holder. On 04-07-2008, again no oral evidence was reported and the matter was posted for hearing to 08- 07-2008 on which date the present application was filed by the judgment debtor. Thus, the enquiry in the EP is still pending. Even if no counter is filed, the execution Court has to necessarily conduct an enquiry and hear both sides and then pass orders in the execution petition. While the enquiry was still pending, when the decree holder reported no oral evidence, judgment debtor No.2 filed the present application seeking cross-examination of the deponent who filed the affidavit on behalf of the decree holder. When the decree holder seeks a relief in the execution petition based on an affidavit filed in support of the execution petition, the judgment debtor is certainly entitled to cross-examine the said deponent for testing the veracity of the contents thereof and enable the Court to ascertain the truth. Simply because the judgment debtor has not filed counter, it cannot be said that he is not entitled to cross-examine the deponent who filed affidavit on behalf of the decree holder. When the decree holder is seeking the relief of arrest and detention in civil prison of the judgment debtor, the judgment debtor is certainly entitled to cross-examine the decree holder and put to test the veracity of the averments contained in the affidavit filed by the decree holder. 5. Order XIX Rule 2 CPC states that upon any application evidence may be given by affidavit, but the Court at the instance of either party, order the attendance for cross-examination of the deponent. The learned counsel for the petitioner would contend that Order XIX Rule 2 CPC contemplates cross-examination of the deponent of an affidavit which is filed by way of evidence, but not as a pleading and in the present case no such affidavit in lieu of evidence is filed and, on the other hand, the decree holder reported no oral evidence. In the present case, the affidavit of the deponent is filed by decree holder in support of the execution petition. The decree holder is seeking the relief of arrest and detention in civil prison of the judgment debtor and also dismantling of the structures in the execution petition based on the contents of the affidavit filed in support thereof. 6. Order XXI Rule 11(2) CPC prescribes the particulars to be furnished in a tabular form in the EP. Order XXI Rule 11-A CPC which was introduced by way of amendment by Act 104/1976 contains a special provision regarding the application for arrest stating that where an application is made for the arrest and detention in prison of the judgment debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which the arrest is applied for. 7. Before ordering arrest of the judgment debtor and his detention in civil prison, the Court has to necessarily record its satisfaction that the grounds for such arrest and detention in civil prison do exist. Before arriving at and recording such satisfaction, the Court has to necessarily conduct an enquiry. During the course of such enquiry, the judgment debtor, whose arrest and detention are sought, is certainly entitled to seek cross-examination of the decree holder. 8. The learned counsel for the petitioner relied on a decision in KADITYALA BHARATHI v. TELUKUNTLA NARASIMHA AND OTHERS[1] wherein it was held that under Order XIX Rule 1 CPC is applicable only in cases where issues can be decided on the basis of affidavit and not while dealing with interlocutory applications. In the above case, the revision petitioner was not a party to the suit for partition but got himself impleaded in petition filed for passing final decree claiming that his properties were included in the plaint schedule. Further, except making a bald allegation that the preliminary decree was obtained collusively she has not indicated as to how she is entitled to the properties. Observing that the petition was apparently filed with an intent to protract the litigation, the dismissal of the said application was upheld by this Court. It was observed that the entire affidavit though runs into more than 3 pages does not indicate as to how the petitioner was entitled to claim any of the properties covered by the preliminary decree and how the preliminary decree was collusively obtained by the original parties to the suit. The decision cited is not applicable to the facts of the present case wherein the present application under Order XIX Rule 1 CPC is filed by none else than the judgment debtor himself and in the course of the enquiry in the EP wherein the Court has to necessarily decide the question as to whether or not the decree holder is entitled to the relief prayed for in the execution petition, and further the application under Order XIX Rule 1 CPC is not filed in any interlocutory stage. 9. The learned counsel for the petitioner relied on a decision of a Division Bench of this Court in D.TULIJA DEVI AND OTHERS v. MARGAM SHANKAR AND ANOTHER[2] wherein it was held that after the decree has become final or long thereafter if there is a violation of injunction, by judgment debtor, the Court which passed the decree can order detention and attachment of property. In the above case, the petitioners obtained decree for permanent injunction and they filed execution petition for execution of decree seeking arrest of judgment debtor and his detention in civil prison for willful disobedience of permanent injunction under Order XIX Rule 32 CPC. In addition, they also sought a direction to SHO, Mills Colony to ensure due obedience of the decree to the order of injunction by direct action. In the above case, it was held at para 6 as under: “Indeed, under XXI Rule 32 CPC as well as under Order XXXIX Rule 2A of CPC, the arrest of the Judgment Debtor or violator is one of the modes of ensuring due respect to the decrees. If the Court feels that there has been willful disobedience of the decree or breach of the decree by some positive act by the Judgment Debtor, the civil Court may order arrest or detention in civil prison of the violator or direct attachment of property or both. Pending such orders in execution petition, the trial Court cannot pass orders directing the police to intervene. Indeed, even if the case is proved that the Judgment Debtor has violated the decree of perpetual injunction, the civil Court can even direct restitution to meet ends of justice”. It was further held that the inherent power of the Civil Court recognized by Section 151 CPC would not be available when the Code has specifically provided necessary procedure and modalities to do a particular thing. The principles laid down in the above decision cannot be disputed. However, they have no application to the facts of the present case for the reason that in the present case the enquiry into the EP is still pending and no order holding that the judgment debtor has committed any act of breach of disobedience to the injunction decree, has yet been passed. 10. It is well settled that the liberty of a person cannot be curtailed without due process of law. The principles of natural justice certainly require that before a person is condemned, he must be given an opportunity of hearing in its real sense and such opportunity necessarily takes in its fold the right to cross-examine the opponent at whose instance the arrest and detention of the judgment debtor is sought. The specific contention of the petitioner is that he never violated the decree passed by the Court and, therefore, he is not liable to be arrested and the relief of removal of structures is beyond the scope of decree. He, therefore, seeks an opportunity to substantiate the said contention. The impugned order of the execution Court giving him such an opportunity and in the course thereof permitting the judgment debtor to cross-examine the decree holder would only sub-serve the cause of justice and, therefore, does not call for any interference. The execution Court is, therefore, directed to give an opportunity to both sides to adduce such evidence as they may desire to let in and an opportunity of cross-examination and after hearing pass appropriate orders in the execution petition in accordance with law. 11. In the result, the civil revision petition is dismissed, with the above direction. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 15th April, 2011 Lrkm [1] 2001(3) ALT 287 [2] 2010(2) ALD 732 (DB)