BAGICHA SINGH Vs. SUBA SINGH

JUDGEMENT

(1.) On 19-1-1974, a decree for permanent injunction was granted in favour of Bagicha Singh restraining Suba Singh and other judgment-debtors from interfering with the possession of the plaintiff on the agricultural land in dispute. In July, 1974, the judgment-debtors dispossessed the decree-holder and violated the injunction decree. Thereafter, there were two sets of criminal litigation between the parties at the instance of the judgment-debtors in both of which the judgment-debtors were not convicted for one reason or the other. On 6-12-1977, the decree-holder filed an application under Order 21, Rule 32 of the Civil P. C. (hereinafter called the Code) for enforcing the decree of permanent injunction by the modes provided in the Code. On 26-5-1979, the Executing Court ordered the enforcement of the decree by detaining judgment- debtors in civil prison and attachment of their properties. On 4-7-1979, attachment of their properties. On 4-7-1979, attachment of the properties of the judgment-debtors was effected. However, they were not detained in civil prison as in the meantime they had moved this Court by filling Civil Revision No. 1477 of 1979 against the order of the Executing Court in which interim order of stay of arrest was passed on 17-7-1979. Finally, by order dated 9-101979 the revision of the judgment-debtors was dismissed by this Court. Thereafter, the judgment-debtors moved the Supreme Court by filing a Special Leave Petition along with an application for stay for execution in which the operation of the order of the Executing Court was stayed on 15-11-1979. The matter finally came up before the Supreme Court on 14-4-1980, when the order of the Executing Court regarding detention of the judgment-debtors in civil prison was set aside and the remaining order was maintained and the execution was allowed to proceed further in accordance with law. The exact order of the Supreme Court was as follows :--

(2.) After hearing the learned counsel for the parties I am of the view that this revision deserves to succeed. Since various provisions of Rule 32 of Order 21 of the Code fall for consideration, therefore, it will be appropriate to reproduce the same :- "32. Decree for specific performance for restitution of conjugal rights, or for an injunction :- (1) Where the party against whom a decree for the specific performance of a contract or for restitution of conjugal rights, or 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 in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the Civil prison, or by the attachment of his property, or by both. (2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison f the directors or other principle officers thereof, or by both attachment and detention. (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 may be sold; and out of the proceeds the Court may award to the decree- proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (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, no application to have the property sold has been made or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu o or in addition to al 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." A reading of sub-rule (1) shows that to enforce a decree for injunction, an opportunity is to be granted to the judgment-debtor to obey the decree and in case he wilfully fails to do so, the decree can be enforced by detention in civil prison or by attachment of the property of the judgment-debtor or by both. Under sub-rule (3), if attachment made under sub-rule (1) remains in force for a period of six months and if the judgment-debtor has not obeyed to decree and if the decree-holder has applied to have the attached property sold, the same can be sold. Under sub-rule (4), where the judgment-debtor has obeyed the decree and ha paid all costs of executing the same or where at the end of six months from the date of attachment no application to have the property sold is made, or if made, has been refused, the attachment ceases. Under sub-rule (5), where a decree for injunction has not been obeyed, the Court may, in lieu of or in addition to all of the aforesaid processes, 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 recovered as if they were included in the decree. Therefore, it is clear that if time is allowed to the judgment-debtor to obey the decree of injunction and if he wilfully continues to defy, he can be detained in civil prison or his property can be attached or both steps can be taken against him and if in spite of that he does not obey the decree for a period of six months, then the attached property can be put to sale if so applied for by the decree-holder. It is further provided that the Court has power to have the compliance of the decree in lieu of other processes or in addition thereto by directing that the act required to be done by the judgment-debtor be done at his expense either by the decree-holder or some other person appointed by the Court.

(3.) In the present case, the judgment-debtors cannot be detained in civil prison as ordered by the Supreme Court, therefore, it is to be seen whether out of the remaining processes, which of them deserve to be followed. The decree of injunction was passed on 19th Jan., 1974 which they violated in July, 1974 by dispossessing the decree-holder. The decree-holder first resorted to complaints before the Criminal Court and them moved the Civil Court on 6th Dec., 1977. It is not disputed even before me that all though the judgment-debtors have been in possession of the land in dispute since after the passing of the decree for permanent injunction. It is also not in dispute that the decree-holder is seeking compliance of the decree right from Dec., 1977 before Civil Court and yet the judgment-debtor have not complied with the same as they have not delivered back possession to the decree-holder.