NATABAR PARIDA Vs. BIHARI CHARAN MOHANTY

JUDGEMENT

(1.) This writ application is directed against an order passed by the executing Court as confirmed by the revisional court. There is no dispute that there is a decree for permanent injunction in favour of opposite party No. 1. An application was filed under Order 21, Rule 32, Code of Civil Procedure (in short, the "C.P.C.") before the executing court stating that the present petitioners had violated the decree of permanent injunction. The executing court after finding the present petitioners guilty of the alleged violation directed that the petitioners shall be detained in civil prison for a period of one month and their property shall remain attached for a period of six months. In revision, the said order having been confirmed, the present writ application has been filed.

(2.) Learned counsel for the petitioners first contended that adequate opportunity of hearing has not been afforded by the executing court to the present petitioners to adduce evidence and as such the matter may be remanded. Learned counsel for opposite party No. 1, however, stated that the present petitioners had appeared before the executing court and, therefore, it cannot be said that adequate opportunity had not been afforded. After going through the L.C.R., I am not in a position to come to the conclusion that adequate opportunity had not been given and as such there is no necessity for remanding the matter.

(3.) Learned counsel for the petitioners then submitted that even assuming that there had been violation, the penalty imposed appears to be grossly disproportionate. The allegation in the petition indicated that the present petitioners had taken away few coconuts which had fallen down on the ground while opposite party No. 1 was plucking coconuts from the tree. It is also found that the present petitioners did not allow the opposite party No. 1 to repair the fence. Having regard to the nature of allegations and the nature of violation, the direction regarding civil imprisonment for a period of one month of the petitioners who are husband and wife and aged about 72 and 61 years respectively appears to be grossly disproportionate.