GAHUR ALI KARIKAR Vs. SMASIA KHATUN

JUDGEMENT

(1.) These two Rules are the outcome and it is to be hoped to be the last stage in a protracted litigation between a man Gahur Ali Karikar on one side and his wife Asia Khatun, her mother Kokanu Bibi and her stepfather Misir Ali Karikar on the other. In the year 1927 Gahur Ali instituted a suit against his wife Asia Khatun, her mother Kokanu Bibi and her stepfather Misir Ali in which he claimed as against his wife restitution of conjugal rights and as against the other two defendants an injunction restraining them from obstructing the return of his wife to him. On 14 July 1927, a decree was made in that suit whereby it was ordered that Asia "Khatun should return and render conjugal rights to her husband, the, plaintiff, and as regards the other two defendants that they be restrained from obstructing the return of the wife to the husband. Apparently that decree was not complied with by any of the defendants and accordingly the plaintiff made an application under Order 21, Rule 32, for the attachment of certain property belonging to Kokanu Bibi and Misir Ali on the ground that they had wilfully failed to obey the decree which had been made against them, The property was in fact attached on 4 September 1927. After the lapse of one year an application was made under Order 21, Rule 32, Sub-rule (3) for the sale of the attached property. That move on the part of the plaintiff seems to have been countered by his wife, defendant 1, in the suit by the institution of a fresh suit in which she sought a declaration that the marriage between her and the plaintiff had been dissolved by her lawfully giving a talak to her husband under some delegated power conferred upon her at the time the marriage took place.

(2.) In answer to the application which was made on 2 October, 1928, certain objections were raised by the defendants including the objection that the suit for a declaration that the marriage had been dissolved was pending and that in fact the marriage had been dissolved on some date in July 1928, that is to say, on a date prior to the application for the sale. In consequence of such objections, various proceedings took place which I need not specify. Finally, an order was made directing the sale and the sale of the attached property took place on 16 December 1930. It does appear that the Subordinate Judge, when he dealt with an appeal from that application, was in some doubt as to whether or not the sale ought to take place in the circumstances as at that time there had been no decision in the suit for a declaration of the dissolution of the marriage. However he came to the conclusion that there was no reason why the sale should not take place under the provisions of Order 21, Rule 32 (3). A month or so later, that is to say, on 9 January 1931, there was an application on the part of the defendants Kokanu Bibi and Misir Ali, to have the sale set aside. That application purported to have been made under Order 21, Rule 89. The matter came before the Munsif, 2nd Court, Chikandi on 2 February, 1931. In the course of his judgment he says: The properties were sold to compensate the decree-holder for judgment-debtor's disobeying the order of the Court and thus being guilty of contempt of Court. In such a case judgment-debtors 2 and 3 have no locus standi to apply to set aside the sale under Order 21, R, 89, Civil P.C. Their only remedy was to obey the decree and pay all costs of executing the same within full one year of the date of attachment as provided by Order 21, Rule 32, Cl (4). Again Order 21, Rule 89, Civil P.C., applies where immovable property has been sold in execution of a money or mortgage-decree. In the present case the properties in question were sold to compensate the decree-holder for judgment-debtors wilfully disobeying the order of the Court passed in a decree for restitution of conjugal rights.

(3.) He came to the conclusion that judgment-debtors Nos. 2 and 3 had no locus standi to have the sale set aside and therefore the petition was rejected. A few days later, that is to say, on 13 February 1931, the learned Munsif proceeded to assess the amount of compensation to be paid to the decree-holder under Order 21, Rule 32(3). He was of the opinion that the decree-holder was entitled to get compensation to the extent of Rs. 600. One of the two Rules, with which I am now concerned, has reference to that order. Against both the decisions of the learned Munsif there was an appeal to the Subordinate Judge of Faridpur and he dealt with both matters along with another matter, that is to say, the appeal against the order of the Court of first instance refusing to set aside the decree which in the meantime, that is to say, on 2 July, 1930, had been obtained by Asia Khatun in her suit against her husband. That decree had been made ex parte and had declared that the marriage between Gahur Ali and Asia Khatun had been dissolved as from 16 July 1928. The learned Subordinate Judge of Faridpur was evidently of opinion that the litigation between these parties was not only very unfortunate but that some of the orders which were made in the course of the proceedings were the outcome of the applications which were in effect abuses of the process of the Court. The Subordinate Judge came to the conclusion that the sale of the property attached in the way I have described ought to be set aside not because Order 21, Rule 89 was applicable to the circumstances of this case, but because the order directing the sale in the first instance ought, in fact, never to have been made on the ground that the decree of 2 July, 1930, made in the wife's suit, contained an injunction restraining her husband from putting into execution the decree obtained by him in July 1927. The learned Subordinate Judge also allowed the appeal as regards the Munsif's order for payment of Rs. 600 by way of compensation for the same reason. He definitely came to the conclusion that Order 21, Rule 89, has no application in the circumstances of this case and I am of opinion that the order was correct. There seems to be no doubt that the provisions of Order 21, Rule 32 are intended chiefly to provide something in the nature of a penalty for breach of an order of the Court, though Sub-rule (3) does provide that some portion of the price realized by the sale of the property may be allocated as compensation to the decree-holder in the suit.