SHIVDHARI GOPE Vs. ANANT PODDAR

JUDGEMENT

(1.) This civil revision application has been filed by the judgment-debtors first party and it arises out of an order dated the 24th of August, 1968, passed by the learned Munsif, 2nd Court, Begusarai, in Execution Case Np. 12 of 1966.

(2.) The relevant facts may be briefly stated as follows. Badri Poddar, father of Anant Poddar and Dwarka Poddar (opposite parties 1 and 2 respectively), instituted Title Suit No. 95/27 of 1951/1952 in the Court of the Second Munsif, Begusarai, against Sitaram Gope, father of the petitioners, and Local Board, Begusarai, claiming declaration of title and confirmation of possession in respect of 15 dhurs of land out of Plot No. 3354. He also sought the relief of permanent injunction restraining the defendants from interfering with his possession. It appears that the original plaintiff and Sitaram Gope (defendant No. 2) died during the pendency of the suit and they were substituted by their legal heirs. The suit was decreed by the trial Court and the possession of the plaintiffs was confirmed. The defendants were restrained perpetually from interfering with the possession of the plaintiffs over the suit land. The decree passed by the trial Court was ultimately affirmed by this Court in Second Appeal No. 84 of 1961. On the 12th of March, 1966, the decree-holders opposite party filed an application under Order 21, Rule 32 (1) of the Code of Civil Procedure which was numbered as Execution Case No. 12 of 1966. In that application they alleged that after the passing of the decree the judgment-debtors interfered with the possession of the decree-holders and they put certain structures on plot No. 3354 and thereby disobeyed the order of permanent injunction. Accordingly a prayer was made for arrest and detention of the judgment-debtors in Civil prison and for attachment of certain moveable properties specified in Schedule I of the petition. As it appears from the order of the learned Munsif, the judgment-debtors took the plea of limitation and maintainability of the application filed by the decree-holders. The learned Munsif decided the question of limitation separately by some previous order. In his order dated the 24th of August, 1968, he decided the question of maintainability and considered the merit of the application. He held that the application was maintainable and the judgment-debtors were guilty of civil contempt. Accordingly he passed an order directing the attachment of the movable properties mentioned in Schedule I of the application filed by the decree-holders on failure of the petitioners to remove the structures within three months of the date of the order. The learned Munsif passed the above order under Sub-clause (1) of Order 21, Rule 32 of the Code of Civil Procedure. Being aggrieved by this order the petitioners filed an appeal in the court of the Subordinate Judge at Begusarai and the same was numbered as Miscellaneous Appeal No. 33 of 1968. On the 5th of December, 1968, the learned Subordinate Judge dismissed the appeal summarily oh the ground that it was not maintainable. The petitioners then filed this civil revision in this Court.

(3.) The only point which has been canvassed in this Court is the question whether an appeal was maintainable against the order passed by the Munsif. Mr. Kailash Roy, learned Counsel appearing for the petitioners, in the first instance, urged that an appeal is maintainable under Section 104 (1) (h) of the Code of Civil Procedure. There does not appear to be any substance in this contention. As provided under Sub-clause (h) of Section 104 (1), an appeal lies from an order under any of the provisions of the Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree. In the instant case the learned Munsif did not pass an order directing the arrest or detention of the petitioners in civil prison although a prayer for the same had been made by the decree-holders. The order of the Munsif cannot be interpreted as an order imposing a fine on the judgment-debtors. The order in question is simply an order of attachment of certain moveable properties. There is yet another difficulty in holding that that the order will come within the scope of Clause (h) of Section 104 (1) of the Code of Civil Procedure inasmuch as, for the reasons which I am going to state presently, the order must be held to have been passed in execution of a decree. The provision of Sub-clause (h) of Section 104 (1) is, therefore, not attracted.