ALLA VENKATASSAMY Vs. ALLA BULL RAJUDIED

JUDGEMENT

(1.) Petitioners are the judgment debtors. One Alla Appayyamma preecessor-in-interest of the respondents laid the suit O S 308/72 on the file of the Court of the 7th Addl. Munsif Magistrate, Visakshapatnam for declaration of title and perpetual injunction, Initially the trial Court dismissed the suit. On appeal in A S No. 101/75 the District Court by decree and judgment dated July 8, 1977 decreed the suit declaring Appayyamma as owner of the property and issued permanent injunction restraining the defendants from interfering with her possession. She laid E P. 30/78 under Order 21 rule 32 CPC for attachment of the properties and for imprisonment of the petitioners on the ground that since they had to obey the injunction but yet with impunity they obstructed her getting the lands ploughed and thereby the petitioners have disobeyed the order of injunction. The executing Court after recording evidence and consideration thereof order dated October 9, 1980 held that it is no longer open to the Petitioners to contend that Appayamma is not entitled to the scheduled-mentioned properties and that they are in possession and enjoyment. It is also held that the petitioners have committed acts in voilation of the injunction issued against them. In view of the fact that the parties are closely related instead of sending the petitioners to civil prison directed attachment of the property under Order 21, Rule 32 CPC. Pending that E P she also filed another E P 404/81 for sale of the attached property in E P 30/78 and to award damages to the decree-holders. That E P was dismissed initially by the Executing Court by order dt. January 22, 1983, Against that, C R P 1025/84 was filed in this Court. By order dated July, 21, 1986, this Court allowed the C R P and held that the E P. is not barred by limitation the property is liable to sale and accordingly remitted the matter to dispose it of in accordance with law. After remittance again the matter was considered and by the impugned order dated Febuary 9, 1989, the learned District Munsif directed the petitioners to pay a sum of Rs. 2.000/- towards damages and on failure thereof, further steps for sale of the property could be made as per law - under Order 21 Rules 64 and 66 CPC Assailing the correctness thereof; the CRP has been filed.

(2.) The contention of Srinivasarao, learned counsel for the petitioners is that the judgment of my learned brother Radhakrishnarao J, in CRP No. 1025/84 is in the teeth of Order 21 Rule 32(3). Therefore it is open to the petitioners to canvass the correctness in this revision. I find that the argument is without any substance. Once the order of this Court in CRP 1025/84 has become final the sale of attached property could be made even after the expiry of three months from the date of attachment and the bar of limitation applies for sale within that time. Having allowed the order to become final, by operation of Section 11 CPC it operates as res judicata between the same parties and it does not lie in the mouth of the petitioners to raise the self same contentions in this revision.

(3.) Order 21 Rule 32 CPC provides procedure for execution of the decree of injunction. It postulates that where the party against whom decree for injunction .......has been passed has had an opportunity of obeying the decree and has wilfully faiied to obey it the decree may be enforced for the injunction by his detention in the civil prison or by attachment of his property or by both. Under sub-rule (3) thereof where any attachment under sub-rule (1) has remained in force for six months (brought by CPC Amendment Act 1976 with effect from Febuary 1, 1977) if the Judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold such property may be sold; and out of the proceeds the Court may award to the decreeholder such compensation as it thinks fit and shall pay the balance if any to the 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 the attachment application to have the property sold has been made or if made has been refused the attachment shall cease. Preceding the amendment as far as the State of Andhra Pradesh is concerned the period of subsistence of attachment is three months and such period may on application by the decree holder be extended for a period not exceeding one year on the whole as it thinks fit and in sub-rule(4) the word "six months'' is substituted for "three months" and the words "the date of attachment" were substituted in the place of "or of such extended period which the Court may order under sub-rule(3)--;" Thus after the Amendment Act it is uniform that the period of attachment to subsist is six months from the date of attachment. The mandatory requirement for compliance in execution under Order 21 Rule 32 is that there shall be a decree for injunction (the other relief viz specific performance restitution of conjugal rights etc, are not necessary for the purpose of this case) and that the judgment-debtor must have had an opportunity to obey the decree; (2) He must wilfully failed to obey the decree and an application had been made in that regard for execution thereof and enquiry to find whether the judgment debtor has wilfully failed to obey the decree; (3) On its recording a finding, the property is liable to attachment and sale and also detention of the judgment debtor in civil prison ; and (4) It is the discretion of the Court to adopt either of the procedure or both depending upon the facts and exigencies in an appropriate case. In this case admittedly it was found on the earlier occasion that the petitioners have wilfully disobeyed the order of injunction and an attachment was made under sub-rule (3) of Rule 32 of Order 21. Therefore, the order of attachment shall subsist for a period of six months. A further application was made for sale of the attached property. If the decree holder has already made an application for sale of the attached property at the end of the period of six months from the date of attachment, the property may be sold and out of the proceeds the Court may award to the decree holder such compensation as it thinks fit and the balance if any shall be paid to the judgment debtor on his application. If no application to have the property has been made or if made has been refused, then the attachment shall cease. Thereby it is mandatory that before the expiry of six months period from the date of attachment an application, to have the property so attached sold shall be made. Once an application has been made then there is no period prescribed and the limitation does not begin to run thereafter. Before the property is sold if six months period is expired that does not cause any impedement for the Court to proceed with the attached property in execution.