SAMUEL Vs. PONNACHEN

JUDGEMENT

(1.) PETITIONERS are the respondents to E. P. No. 161 of 1987 in o. S. No. 314 of 1986 of the Munsiffs Court , Pathanamthitta. The above suit for a permanent injunction was decreed against them on 10-4-1987. The respondents-decree holders filed the above E. P. under Order XXI, R. 32 C. P. C. alleging that the petitioners trespassed into the suit property, demolished its eastern boundary-kayyala, removed trees indiscriminately and caused enormous loss to them. PETITIONERS in their statement of objections denied the allegations and maintained that they did not in any manner disobey or violate the decree and pointed out that there is a 6 feet wide pathway on the eastern side of the suit property, used by them as a also by the local people and when this was sought to be obstructed by the respondents by constructing a kayyala some of the local people who were not parties to the suit interfered and thwarted the attempt. The allegations in the petition are false and made to provide an excuse to take action against them unjustifiably and they prayed that it may be dismissed.

(2.) THE court below examined PWs. 1 to 5 and marked Exts. A1 to A6 for the respondents and DWs. 1 to 3 for the petitioners. After a detailed consideration of the relevant materials it was held that the petitioners had disobeyed/violated the decree and hence liable to be proceeded against under O. XXI Rule 32 C. P. C. THE finding, in my view, is legal and valid and deserves to be upheld. also about the destruction of the kayyala and gave an approximate estimate of the loss sustained by the respondents. But the court below did not wholly endorse the assessment of damages made by the commissioner and held that the respondents arc entitled to Rs. 10,750/- as compensation, which the petitioners/ judgment debtors were directed to pay. In my view, the court below was wrong to have passed such an order without resorting to the provisions in O. XXI. R. 32, under which "where the party against whom a decree 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. . . . by attachment of his property, by detention in the civil prison, or by both". Under sub-rule (3), "where any attachment under sub-rule (1) or sub-rule (2) has remained in force, for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such properly may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance if any to Uie judgment-debtor on his application. " Under sub-rule (4), "where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease". And under sub-rule (5), "where a decree for an injunction has not been obeyed, the court may, in lieu of or in addition to all or any of the processes aforesaid, 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, 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 above provisions would indicate that award of compensation is in the discretion of the court where there had been an attachment of the property of the judgment debtor and the decree holder applied for sale of the same during the period the attachment remained in force viz. six months. Where there was no attachment and sale under sub-rule (3), award of. compensation even as a measure of damages seems to be impermissible. In other words, outside the provisions of O. XX1,r. 32 (1) and (3), award of compensation for the loss sustained by the decree holder at the hands of the violator of the decree would be illegal. THE procedural requirements of the above rules will have to be satisfied to sustain the award of compensation. It is clear that the court below had failed to abide by the said provisions and granted the request made on behalf of the decree holder who rested his claim on the report of the Commissioner. THE impugned order is clearly in excess of the jurisdiction of the court below, is illegal and is hence set aside. THE matter is directed to be disposed of afresh in the light of the above observations and in accordance with law, after giving the parties opportunity to sustain their respective contentions. THE revision is allowed as above. . .