NEELAKANTAN PADMANABHAN Vs. SANKARAN NARAYANAN

JUDGEMENT

(1.) Judgment debtors in an injunction decree are the revision petitioners. The decree was on 15-12-1965 in O. S.115 of 1965 by the Munsiff. Haripad restraining them by permanent injunction from committing waste. On 12-10-1982 E.P. 110 of 1982 was filed alleging disobedience of injunction decree by cutting two jack trees and seeking action under O.21 R.32. They denied the acts but on the basis of evidence the Munsiff found them guilty of having willfully violated the injunction decree. Judgment debtors, husband and wife, on the wrong side of sixty, were ordered to be detained in civil prison for 15 days each. That order is challenged in revision.

(2.) The finding that trees were cut is on the basis of appreciation of evidence which include report of the commissioner and evidence of witnesses. Within the limited revisional jurisdiction under S.115 there is do scope for interference with that finding and the learned counsel rightly desisted from making any such attempt. His attempt was only to convince me that the disobedience was not wilful and hence action, is not justified.

(3.) The requirements for enforcing an injunction decree under O.21 R.32(1) by detention in civil prison or by attachment of property or by both are that the person has bad an opportunity of obeying the decree and has willfully failed to obey it. The rule applies to cases where a party, is directed to do so some act, as well as to cases where he is directed to abstain from doing an act. That is to say it applies to prohibitory as well as mandatory injunctions. The question whether a party had an opportunity of obeying the decree or not or whether he willfully disobeyed it is a question of fact to be decided on the facts of each case. In a decree for prohibitory injunction the question of having had an opportunity of obeying the decree may not arise in as much terms as in a mandatory injunction because violation involves a positive act of disobeying the prohibition.